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.

 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.

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.

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.

First, the parties need to figure out when holiday plans overlap who gets to celebrate with the children.  It is easy to work out for some special events, such as a birthday, where possibly the child could spend half the day with each parent or there could be celebrations on different days.  But what happens when both parents want the child for a specific time, such as Christmas morning?

In final divorce documents, the parties agree to or the court determines a holiday schedule.  A common schedule would be where the parents alternate holidays every other year.  That way, both mom and dad are able to maintain a tradition with the children and the children are able to spend time with extended family on both sides.  This, of course, is something that is able to be worked out by the parents.  If a family has different traditions, a holiday schedule is able to incorporate that.  For example, if mom wants to bring the children up north to see her family the first week of winter break, but dad likes to take a vacation with the children the second week of winter break, the parties are able to put those specific terms into an agreement for the court to sign off on.  The parties are always able to agree on things outside of court, but it is only binding and really enforceable without going back to court if the court incorporates the terms into a court order.

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.

An asset that people often overlook when they are getting divorced is a business owned by one of the parties.  If it was started during the marriage, the other spouse, whether they were involved in the business or not, has a marital claim to a portion of the spouse’s business interests. 

This business interest is not just the amount of income the spouse would make in a given year.  It includes any inventory owned by the company, any assets of the company such as a company car, and any income received by the business outside of salaries.  This interest is offset by any amount of the value of the company that is attributable to the name of the spouse themselves.  This is known as a key person discount.

An easy way to think of the business value is what it would be worth if the business were sold today.  It is, of course, much more complicated than that.  In divorce proceedings, both sides may hire experts to do a business valuation and determine exactly what it is worth and what should be awarded to each spouse in a divorce.

 The court looks at the 13 “best interest” factors when determining custody.  Each of the factors is weighed in the analysis, and the court will determine who should have custody.  However, when the parties first separate, there generally is one party who has been providing most of the care for the children, and that party will continue to do so until a parenting time schedule is agreed upon.

 When parties decide to work together, they can come to an agreement in what is known as a “Parenting Plan.”  The parenting plan outlines the basic parenting time schedule, as well as how the parents will handle holidays, communication regarding the children, and miscellaneous details such as deciding which extracurricular activities the children will participate in.  The parenting plan is a useful tool because the parties are able to discuss matters while they are calm and rational, putting guidelines into place for the future when things could possibly become more contentious.

 Parenting plans also allow the parties to set guidelines for how to deal with issues in the future.  For example, a common problem in custody cases is a custodial parent wanting to move out of state with the child.  This could include even moving across the border, even if it is a shorter distance than a move within the state.  The court is reluctant to grant a move out of state when the parties don’t agree.  Often, when the time comes that a party is considering a move, the tension rises regarding custody.  A parenting plan would allow the parties to decide how to handle the issue of moving out-of-state prior to any parenting plan being set up.

 A sample of a parenting plan can be found here.  As is with any agreement between parties, in a parenting plan the parties can set guidelines for determining issues that the court would not otherwise be able to.  Parenting plans are a very useful tool in helping people be able to better co-parent.

 When parties divorce, the home is either ordered to be sold or is awarded to one of the parties.  The agreement does not always specify that the party keeping the home should refinance, however.  What happens then?  Does this affect the other spouse’s credit?

 The answer is it very well can have an impact on your credit.  If you are the spouse walking away from the home and your ex does not plan to refinance, the mortgage company is still able to come after you for any of the unpaid mortgage if your ex does not pay on time.  The mortgage company can report this to the credit bureaus, which will have an effect on your credit score.  Your recourse at that time is to make a payment and then sue your former spouse in court.

 There is no recognized legal right to sue based on damage to your credit score.  If you are not able to make a payment on the mortgage, you may be left with no recourse, even though your spouse assumed the entire payment.  This is why it is important to know what your final divorce agreement says and speak to a lawyer about how that will affect you long-term.

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.