Contested Divorce (2)

Archive for the ‘Contested Divorce’ Category

What if my spouse and I want to reconcile during the divorce process?

Thursday, February 11th, 2010

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.

Tags: Divorce, Inactive status, Reconcile
Posted in Contested Divorce, Divorce Mediation, Uncontested Divorce | No Comments »

Can’t the court make my spouse pay my attorney fees in a Minnesota divorce?

Monday, February 8th, 2010

Almost always in a divorce, one party is in a better financial position than the other. This could be due to one being a stay-at-home parent or homemaker, one party having more education than the other and higher earning capacity, or one party having a more lucrative career than the other. Regardless of the basis for it, a question that is often asked by the lower- or non-earning spouse is “can’t the court make my ex pay my attorney fees?”

During the divorce process, attorney fees are generated by everything the attorney does for you, including preparation for court or mediation and general counseling of the client. There is no guarantee that the court will require one party to pay the attorney fees of the other. However, depending on the discrepancy in income levels and the access each party has to marital assets, it is possible that fees will be ordered. Minnesota statutes do state that if an award of fees is necessary for a party to carry on the proceedings, fees should be awarded. This does not allow a party to continue to bring the other spouse back in court for unnecessary hearings though. The court generally will look at one spouse’s need for payment and the other spouse’s ability to pay.

Most divorce cases settle outside of court. When this is done, attorney fees may be negotiated between the parties. Most often, the party with lesser means will pay their attorney fees and other debts out of the property settlement. They may receive more assets or liquid funds to be able to do this. Each settlement is unique. Generally, however, both parties will need some payment to get an attorney involved in the proceedings.

Tags: Attorney fees, Divorce
Posted in Attorney's Fees, Contested Divorce | No Comments »

Am I allowed to move my child out of Minnesota?

Thursday, February 4th, 2010

Often during the course of a divorce or custody dispute, one parent wants to move out-of-state with the child. Minnesota law requires the parent to either get the consent of the other parent or to get the court’s permission. However, if the decision is up to the judge, it is very difficult to gain permission to leave the state.

Minnesota Statute § 518.175 addresses a request to move to another state. This statute sets out the requirement that if a parent is requesting to move, it is their burden to show that it is in the best interest of the child. The statute further sets out specific factors that need to be considered by the court in making this decision.

If domestic violence has occurred between the parties, then the burden shifts to the parent objecting to the move to show it is in the child’s best interest to remain in Minnesota.

Generally, the court will not find it to be in the child’s best interest to move if the child is well integrated into the community here and there is any possibility that the child’s relationship with the parent who is not moving would be affected by the move. The court wants to be sure that both parents are able to carry on a relationship with the child and have a strong relationship with him or her.

An interesting point in discussions of moving is that there is no standard for if a parent wants to relocate within the state of Minnesota. Unless the parties previously agreed otherwise, the relocating parent does not have to get permission from the other parent or from the court. This leads to some confusion, as sometimes a parent may just want to move one town over which is in another state, which requires permission, but would be able to easily move hours away across the state with no problems.

If your child’s parent has left the state of Minnesota with your child and without yours or the court’s permission, you should speak to an attorney about your rights. There are procedures and remedies available for you through the court system. Contact the family law attorneys at Germscheid, Heimerl & Lammers for a free consultation to discuss your case today.

Tags: Custody, Divorce, Move
Posted in Child Custody, Contested Divorce | No Comments »

How can an order for protection influence a custody case or divorce in Minnesota?

Monday, February 1st, 2010

In the state of Minnesota, if you are the victim of domestic abuse you may be able to obtain an Order for Protection. For more information on OFPs, see our webpage. When an incident of violence occurs during the divorce process or even in a custody dispute once the papers have been filed, a victim is still able to use the court process and protections to obtain an OFP.

An OFP can have additional effects other than just putting a no-contact provision in place. In reality, the OFP may end up resolving some collateral issues outside of just contact. For example, if both parties were residing together before the abuse, the OFP may award temporary occupancy of the home to one party, generally the victim of the abuse. This may have a longer-term effect on the other pending legal action if the home is to be awarded in the future.

Obtaining an OFP gives a party faster results than going through the regular court process, but it should not be abused by parties. Provisions determined in an OFP hearing may be later modified in the family law case that is pending. Also, the court is able to look at all circumstances surrounding the incident of abuse to determine if there really is a valid claim for protection or if the court believes the party is abusing the system to gain an advantage in the family court proceedings. Parties should not feel discouraged from bringing an OFP during a custody or divorce proceeding, but it should only be done when there has been a legitimate incident of abuse, or one party is in fear of the other and needs additional protection from the court that they cannot get through the divorce or custody action.

Tags: Custody, Divorce, Domestic Abuse, Order For Protection
Posted in Child Custody, Contested Divorce, Domestic Abuse, Property Division | No Comments »

A New Way of viewing domestic abuse in family court: “seeing shades of gray”

Monday, January 25th, 2010

Domestic abuse is a serious issue that often infiltrates divorce and custody matters. When emotions and tensions are high, some individuals cannot handle the stress and problems arise. Also, there are plenty of chronic abusers involved in divorce cases where the victim has finally broken free and is working to establish their life without the abuse.

A new trend in domestic abuse research and advocacy is looking at distinguishing between types of abuse and abusers, since not every case is the same and in need of the same treatment. An article published by MPR interviewed Ellen Pence of Praxis International and Liz Richard of the Minnesota Coalition for Battered Women. This article explains the difference in recommendations for “situational violence” perpetrators, such as anger management programs, and chronic abusers, including extensive monitoring and longer jail sentences.

There is currently a two-year pilot program in Minneapolis, The Battered Women’s Justice Project, that is looking at how domestic violence may be viewed differently by custody evaluators, attorneys and judges in the family law system. Advocates hope that the system will be able to take a more nuanced view of domestic abuse and how abuse affects families as a whole, regardless of who the abuse was perpetrated against. There is also a goal of changing the way domestic abuse cases are handled once they are in the family court system.

Tags: Custody, Divorce, Domestic Abuse
Posted in Child Custody, Contested Divorce, Domestic Abuse | No Comments »

DIVORCE EDUCATION CLASSES IN MINNESOTA

Thursday, January 21st, 2010

Minnesota Statutes require all divorcing couples with children attend an educational course. Some counties, like Hennepin County require that the children of divorcing couples attend an educational course as well. The purpose of the educational courses is to address children’s feelings when their parents are divorcing or separating.

The courses are mandatory and a court may refuse to finalize a divorce until the parties have attended and provided proof of attendance of these courses.

In Hennepin County, if the parents have reached an agreement on custody and parenting time only one course is required. You may pick one of the following education courses to satisfy your requirements:

1. Hennepin County District Court Education Video This class is 1.5 hours, and it’s held at the Hennepin County Government Center. There are find out more about class dates, call 612-348-6734.
2. The Storefront Group Co-Parenting Program With your participation, you’ll receive a certificate of completion. You’ll need to file this certificate with the court. This class lasts 4.5 hours. It costs about $60 per person. For more information or to register, call Storefront/Youth Action at 612-861-1675.
3. Chrysalis’ Shared Parenting With your participation, you’ll receive a certificate of completion. You’ll need to file this certificate with the court. This class lasts 4 hours. It costs $55 per person. For more information or to register, call Chrysalis at 612-870-2479.

If you have not reached an agreement on custody and parenting time three classes are required.
1. Hennepin County District Court Education Video with Mediation There is no fee for this class. For more class locations/dates or for more information, call 612-348-6734.
2. The LEAD Program LEAD stands for “Legal and Economic Aspects of Divorce. For more information or to register, call Storefront/Youth Action at 612-861-1675.
3. The third class is either (1) The Storefront Group Co-Parenting Program For more information or to register, call Storefront/Youth Action at 612-861-1675. OR (2) Chrysalis’ Shared Parenting. For more information or to register, call Chrysalis 612-870-2479.

If you are divorcing in a county that requires your children attend education courses the following courses satisfy your requirements:
1. The Storefront Group Co-Kids Program Call 612-861-1675 for program content and registration materials.
2. Chrysalis’ Sandcastles Program Call 612-870-2479 for program content and registration materials.
Since education requirements vary from county to county, you may want to consult with one of the family law attorneys at Germscheid, Heimerl & Lammers to determine which classes will meet the requirements set forth by your particular county.

Tags: Child Custody, Divorce, Divorce education
Posted in Child Custody, Collaborative Divorce, Contested Divorce, No Fault Divorce, Uncontested Divorce | No Comments »

How do you trace interests in property before the marriage in Minnesota?

Thursday, January 14th, 2010

Often when parties get divorced, the value of any property is split down the middle; each party gets about 50% of the assets and debts from the marriage. This can get more complicated, however, when assets were owned by one party prior to the marriage and maintained through the marriage. How do you place a value on the item prior to the marriage, and account for any changes to the nonmarital portion when it comes time for divorce?

For accounts such as 401(k), financial experts are able to help trace what happened during the marriage to the share of the account that existed prior to the marriage. The expert basically tracks the ups-and-downs in the market and attributes the changes to the portion on the date of marriage to the individual who held that account prior to the marriage.

In real property, such as land or a home, the tracing looks at the value of the home at the time of the marriage. It is generally easier to see how much the home’s equity (the value minus any mortgage or other encumbrances at that time) is valued at, and attribute it to the party who owned the home. If the parties owned one home during the marriage, the value of the home at the time of the divorce is viewed and the party who owned the home prior to the marriage receives a percentage of the equity. This process is more complicated if more than one home was owned during the marriage, or if the home was refinanced.

If you have any questions about tracing nonmarital interests in property, contact a professional at Germscheid, Heimerl & Lammers today.

Tags: Divorce, Nonmarital, Property, Tracing
Posted in Collaborative Divorce, Contested Divorce, Divorce Mediation, Property Division, Uncontested Divorce | No Comments »

Common Law Marriage: Does it Exist in Minnesota?

Monday, January 11th, 2010

Common law marriage is an old concept that still holds ground in many countries and eleven states. In common law marriage, the parties never actually go through the process of becoming married through the church or state, but reside together and hold themselves out to the rest of the world as a married couple. For states that recognize common law marriage, there is generally a minimum period of time that the parties must live this way before it is considered a “marriage” by the state (i.e.-7 years). Once you are deemed “married”, you must go through the court process to terminate the relationship.

Common law marriage is not recognized in the state of Minnesota at all, but if parties have resided in a state that recognizes common law marriages, the courts will take it into consideration. In Minnesota, even though common law marriage is not recognized and you do not have to go through the court process to terminate your relationship, you may still have some protections that are afforded to married couples. The rights just may not go through the family court system at all. For example, if parties own real estate together and both names are on the title, there are contractual rights that the parties are able to enforce even though they are not married. This would be done in the general civil court system rather than a family court, and the parties are able to enforce any terms of their agreement.

Also, if parties have a child/children together, there are rights that come from being a parent. Parties do not need to be married in order to have custodial rights to their children, nor to collect any form of child support to help in financially supporting their children. If you have been in a long-term relationship but never officially married your partner and have questions about your rights, contact a family law attorney at GH&L today for a free consultation.

Tags: Common law marriage, Divorce
Posted in Contested Divorce, No Fault Divorce, Property Division, Uncontested Divorce | No Comments »

How is the Divorce Process Started in Minnesota?

Monday, December 21st, 2009

A divorce action is started when one party, the “Petitioner”, drafts or has an attorney draft a Summons and Petition. The Summons and Petition set out what the main issues will be in the case, and list pertinent information, such as addresses, whether there are minor children, and any real estate owned by the parties and affected by the action. The Summons and Petition are then personally served on the other party, known as the “Respondent.” This means that they are handed directly to that person by another adult individual.

If the parties have discussed divorce and the non-initiating party is willing, they may avoid personal service by signing what is known as an acceptance or acknowledgement of service. If this is done, the papers can be given to the Respondent or even delivered by mail. The Respondent signs a form stating that they acknowledge that they were served and that they understand they only have 30 days to answer the Petition.

An acknowledgment of service is a good alternative for individuals who do not want a process server coming to their home or work. It is also used often when the parties have discussed the coming divorce action and they have discussed settlement terms already. This takes the extra step of personal service out and saves the additional expense for the Petitioner.

The next step in the divorce process depends partly on how likely it is that the parties will reach an agreement and partly on what county the parties live in. Some counties have procedures built in to the process that divert the parties to some form of mediation to try to settle the matter. In other counties, it could be months before any court date is set. However, if the parties are willing to negotiate, the settlement process can start immediately.

Tags: Divorce, Procedure, Service, Settlement
Posted in Collaborative Divorce, Contested Divorce, No Fault Divorce, Uncontested Divorce | No Comments »