Minnesota Divorce Lawyers | Minneapolis Divorce Attorneys

ICMCs and the Early Neutral Evaluation Process

Written By: Amanda Maenner | Published On: 6th October 2009 | Category: Alimony, Child Custody, Child Support, Collaborative Divorce, Contested Divorce, Divorce Mediation, Domestic Abuse, No Fault Divorce, Paternity, Property Division | RSS Feed

In Hennepin County and Ramsey County, the family courts have adjusted to make the process more amicable for cases. Instead of filing a case and having nothing happen for some time, the courts have been automatically setting an initial hearing roughly 3-4 weeks after the time when the case was filed. This hearing, called the Initial Case Management Conference or ICMC for short, allows the parties to meet the judicial officer in charge of their case. It also gives the court the opportunity to assess the issues early on and determine what the best way to handle the case would be.

The ICMC is usually a very informal hearing. Often at ICMCs, the court will order the parties to attend a mediation or early neutral evaluation. This gives the parties the opportunity to work together to try to work out their problems before going further in the court process and becoming more divided. Without using any alternative to court, the parties often become more hostile and set in their ways, and settlement becomes more and more difficult. The courts do not really want to decide such personal issues for people, and the result is often easier for everyone to follow if the parties come to an agreement on any issues without a judge’s help.

Of course, not all cases are suited for resolving through mediation or early neutral evaluation. For example, when domestic violence is an issue, it may be necessary to have the court’s involvement throughout the process. ICMCs allow the court to discover that early on and possibly move up any trial dates so that parties can move on with their lives.

More and more counties are recognizing the benefits of earlier involvement in family law cases. Early neutral evaluation is being integrated into many court systems across the state, and the results have been successful.

Home Mortgages and Divorce in the State of Minnesota

Written By: Kathryn Lammers | Published On: 30th September 2009 | Category: Collaborative Divorce, Contested Divorce, Divorce Mediation, Legal Separation, No Fault Divorce, Property Division, Uncontested Divorce | RSS Feed

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.

Minnesota Third Party Custody

Written By: Kathryn Lammers | Published On: 28th September 2009 | Category: Child Custody | RSS Feed

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.

Annulment vs. Divorce: Which is Right for Me?

Written By: Amanda Maenner | Published On: 24th September 2009 | Category: Contested Divorce, Legal Separation, No Fault Divorce, Property Division, Uncontested Divorce | RSS Feed

Under Minnesota law, when two married individuals plan to separate, the most common route to go is to get a divorce. Often, people want to get an annulment for religious reasons. However, a religious annulment and a legal annulment are two different things. Individuals who go through the divorce process in the court system may be able to still get a religious annulment within their church.

Legal annulments are allowed under very limited circumstances. The idea behind a legal annulment is that there was some reason the parties were unable to actually obtain a legal marriage; these reasons include an individual being under the legal age for marriage, a mental incapacity at the time of marriage, the influence of drugs or alcohol, if consent was obtained by force or fraud, or if the marriage was not able to be consummated and both parties were not aware of that before the marriage took place. Along with only being available in limited circumstances, there are strict time frames in which an annulment action must be filed with the court.

The legal annulment process follows the same general procedure of a divorce in the court system. Property still must be allocated between the parties. However, the end result of an annulment is the court saying that the marriage basically never happened. If you have questions about whether an annulment is right for you, it is best to talk to a Minnesota divorce attorney.

Preserving Your Rights When Your Ex Files For Bankruptcy

Written By: Amanda Maenner | Published On: 21st September 2009 | Category: Alimony, Child Support | RSS Feed

In the current economy, many people have been faced with the reality of bankruptcy. Often, people spent more than they had and are left holding the bill. The bankruptcy process exists to give individuals a fresh start, but what happens when your ex has an ongoing obligation to you?

The bankruptcy court recognizes that some people might try to get rid of their obligations to former spouses, either in the form of spousal maintenance or child support, by filing for bankruptcy. The support owed may have accrued so that there are significant arrears, or the ex may feel that they would rather the future obligation disappear. The court does not allow this to happen.

Any obligation stemming from a “domestic support obligation”, including child support and alimony or spousal maintenance, is not dischargeable in bankruptcy. Moreover, while all other debts of a person who files for bankruptcy are put on hold during the proceedings, a support obligation is not. That means that you will still continue to get your monthly payments even as your ex goes through the entire bankruptcy process.

It is easy to understand the court’s basis for this special treatment. Often, the last place a person wants to spend their money is giving it to their ex. This is true for child support as well, since the obligor has to send a portion of their paycheck each month to the custodial parent. If the bankruptcy court did not allow special treatment for domestic support obligations, then there would be a large increase in filings for this very reason.

If your ex is threatening bankruptcy, or is in the process and has stopped paying you your support, then you have the right to bring him or her back to court to enforce your support order. It is always beneficial to speak with an attorney about your rights and see what steps you should take to protect yourself.

Finding Out You Are Not the Father After Paternity Has Been Established: What Do You Do?

Written By: Amanda Maenner | Published On: 16th September 2009 | Category: Child Support, Paternity | RSS Feed

In paternity matters, it does come up every so often that a man is told he is the father, has no reason to doubt it, and enters into an arrangement to take care of his responsibilities as a parent. Later down the road, he finds out that the child is not in fact his and he is left with often large amounts of child support, already paid or turned into a judgment against him, with no child to show for it. What happens then?

The courts in Minnesota recognize that this kind of situation does happen, and it is not fair to the man who was trying to do the right thing to be punished financially for it. The Minnesota statutes allow for a man in this situation to go back to the court within 6 months of receiving the results of any genetic tests and have the court find that there is no parent-child relationship. This action may not completely release a man from any obligations, however.

The statute sets out “presumptions” for paternity, or situations where the circumstances make it in the best interests of a child for that man to be considered the father, whether he actually is the biological father or not. One of the presumptions is if the man has held the child out as his own, meaning that he has been acting in the role as the child’s father for the rest of the world to see. If a man has been doing this, it may not be possible to overcome just with genetic testing. It is in the best interests of a child that they have someone in the role as a father, and if a child has known that man as their father, the court will not allow the man to walk away at that time.

The better route to go in this situation is vacating the judgment of paternity to start with. The court is able to say that the judgment is unfair based on the circumstances, which should in effect erase any arrears due in support. There is no consideration of the “best interests of the child” which normally would leave him obligated for support. The court is also able to grant restitution if it finds that it would be proper, which means that any paid child support would be returned to the father.

Quickie Divorce From the Perspective of a Minnesota Divorce Attorney

Written By: Amanda Maenner | Published On: 9th September 2009 | Category: No Fault Divorce, Property Division, Uncontested Divorce | RSS Feed

Sometimes when clients come to us to get divorced, both the client and their spouse have already determined how they want their assets and debts divided and what kind of custody arrangement they would like to use. These are sometimes referred to as “quickie divorces” because they do not take the time a typical divorce would take for negotiating between attorneys or even court appearances.

In a quickie divorce, it is still beneficial to have an attorney representing you. An attorney is able to inform you of how your arrangement may impact you in the future, in ways that are not even on your radar. As professionals in this area of law, we are able to bring to you experience with a wide variety of arrangements that work for divorcing parties, and we have the experience to share of what long-term effects certain arrangements may have on you. Using an attorney to draft and/or review your documents will give you the added assurance that things are being done properly to protect your interests. Also, it is not too costly when you take out the difficult portion of reaching agreements on all of the issues in your divorce.

Another benefit of using an attorney in a quickie divorce is that oftentimes, when people think they have an agreement on all issues, they may be missing some parts to the agreement that a court requires, and the paperwork may get stuck in the process. If this happens, it can really slow down the divorce and force you to stay married for longer than is necessary. You may have to make court appearances even though you have an agreement on everything that you thought you needed, which costs you time and forces you to miss work. An attorney will help you make sure that every issue is covered. If a problem crops up in the process of filing, as is sometimes the case, an attorney is well equipped to take care of it in a timely manner.

One common misconception about a quickie divorce is that an attorney may be hired to represent both parties in the process. Since the legal system is adversarial in nature, when a potential client chooses to hire an attorney to draft the paperwork, the attorney represents the party that retains them. That means that an attorney will be able to draft paperwork that both parties agree on, but the attorney should not be giving both parties legal advice about their individual positions. That is why it may be beneficial for both parties to hire an attorney in the limited scope of reviewing the paperwork, so that both parties may be confident in signing any paperwork. It is acceptable and common for one party to not be represented, however. That party would just have to sign a document stating that they knew they had a right to have an attorney, chose to not exercise that right, and agree to the terms of the divorce decree.

Effect of the Economy on Divorce Rates

Written By: Amanda Maenner | Published On: 27th August 2009 | Category: Attorney's Fees, Contested Divorce, Divorce Mediation, No Fault Divorce, Property Division, Uncontested Divorce | RSS Feed

The recent downturn in the economy has affected the amount of divorces over the past year. Our office has seen two trends:

1) Some couples are waiting to file for divorce until the market rebounds. They are concerned in the lowered value of assets such as the marital home and retirement savings accounts, and want to hold off on filing for divorce until they will be able to get some value out of the property division. Also, they may not be in a position to support two separate households and are stuck living together one way or another. There is an interesting article on this phenomenon here.

2) Many couples are trying to negotiate the terms of their divorce settlement on their own, and writing up their own stipulations for the court. They are cutting costs where possible, and saving themselves the cost of hiring an attorney upfront through negotiating on their own.

The second trend may be dangerous, and in many cases it may end up costing you more money in the end. Even if both parties intend for an agreement to mean one thing, if the language is not written properly, the court will interpret the agreement to mean what it actually says. Our office, and that of other family law attorneys in the area, is seeing an increase now in the number of clients that are seeking to modify the agreement that they entered into without counsel. The clients either intended to have some rights reserved in the agreement, or they were supposed to receive something that they have not. The agreement often is written in a way that does not give the client clear recourse in the legal system. When that happens, the client ends up paying much more in legal costs to fix the problem than they would have to avoid the problem to begin with.

There are ways to keep costs low while still using an attorney. For example, a lawyer may be retained for the limited purpose of writing an agreement. The parties come to the attorney with a settlement in mind. One of the parties is formally the client, and the other party is “pro se”, which means that they are unrepresented in the process. This is because in the legal system, an attorney cannot represent both parties to an action.

Another way to keep costs low is if the parties have most details figured out, but have a few sticking points. The attorney is able to advise the client of the legal standards, explain their chances on succeeding on that claim in court, and helping the parties reach a settlement. Again, the attorney only represents one party. However, the costs are significantly lower even for both parties to have attorneys if the parties cooperate outside of the attorney’s office to reach an agreement.

It is not impossible to use the court system to fix problems in original divorce documents. However, it is in your best interest to seek the advice of a lawyer before signing anything. An attorney is able to point out potential problems with agreements that you may not be aware of. An attorney also is able to make sure that you are protecting your rights in a divorce and that all issues are handled in the most efficient way possible.

Father's Rights: Establishing Paternity and Custody

Written By: Amanda Maenner | Published On: 21st August 2009 | Category: Child Custody, Paternity | RSS Feed

Recently we have been receiving many inquiries from potential clients regarding custody. When parents are unmarried, under Minnesota law the mother is deemed to have full legal and physical custody rights to that child. A father must go to court to establish his legal right to his child.

This does not mean that a father cannot see his child or the parties cannot come to an agreement outside of court for parenting time. What it does mean, however, is that fathers have the responsibility of paying court costs to maintain their rights. Without a court order, a mother is able to discontinue parenting time and leave the father with no other recourse.

The process for establishing custodial rights is straightforward. If the parents signed documentation in the hospital, known as the “Recognition of Parentage” form (ROP), then the father can proceed directly with establishing custody. Initial paperwork must be filed, and a hearing is scheduled as soon as possible (but at least two weeks out) where a judge will review the matter and determine what steps are appropriate. Often, the judge will recommend a form of mediation where the parties meet with a neutral third party and try to come to an agreement. Otherwise, a Guardian Ad Litem may be appointed to represent the child’s interests or a custody evaluation may be requested by the court. Custody evaluators observe both parents with the child, interview any individuals that the parents request, and make a recommendation to the court based on the evidence they gathered.

If, however, there was no ROP signed, then the father must first establish paternity. Paternity and custody may be established in the same action in court. Paternity may be established at any time before the child reaches the age of majority, and a paternity action may be brought by either parent or by the county, if there is any public assistance involved.

If you have any questions about establishing custody, or to discuss how establishing custody would affect your rights to your child, contact us to discuss your situation.

Welcome To Our Blog

Written By: Michael Lammers | Published On: 9th August 2009 | Category: Alimony, Attorney's Fees, Child Custody, Child Support, Collaborative Divorce, Contested Divorce, Divorce Mediation, Domestic Abuse, Legal Separation, No Fault Divorce, Paternity, Prenuptial Agreements, Property Division, Uncategorized, Uncontested Divorce | RSS Feed

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