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.

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.

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.

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.

If the home was purchased during the marriage, it is marital property.  Likewise, if it was purchased prior to the marriage but the parties resided in it, there is a good chance that there is some equity attributable to the marriage in it.  Both parties have a valid claim to the home and are entitled to live there until the court says otherwise.

If you do not agree with your spouse at the time of separation regarding who will stay and who will leave, you will need to get the court involved.  Only a court order can determine who is awarded the home.  This can be done at the end of the divorce process, or if needed earlier, through what is called “temporary relief”.  Temporary relief gives the parties relief pending any final resolution of the issues.  One party would bring a motion before the court seeking occupancy of the home, and the court would determine which party should stay.  This party most likely will be the party awarded the home at the time of the final divorce.

The court will look at both parties and determine who it finds should stay in the home.  Sometimes this is straightforward; for example, if one party has been the primary caretaker for the parties’ children and does not have anywhere else to move, the court will most likely award them occupancy of the home.  However, if one party is not able to afford the home and has no reason to remain in it, the court may not award them the property.  As with any other issue, this is considered on a case-by-case basis.

 Mortgage banker Mitch Irwin  specializes in residential mortgages for divorced or divorcing individuals.  He recently presented changes in Fannie Mae and Freddie Mac’s policies that affect individuals that have recently or are currently going through a divorce to a group of family law attorneys .  For example, in order to use income received from child support to qualify for a mortgage or refinance an existing mortgage, you must be able to show 12 months of receipt of consistent, on-time payments, and you also must show that those payments will continue for a minimum of three years.  This policy has an effect on single parents; for example, you would not be able to use the income to qualify if your child is currently 16 years old.

 There are other changes to the guidelines including but not limited to issues surrounding spousal maintenance payments, a party returning to the workforce, and when homes have been listed for sale recently but have not actually sold.  This isn’t to say that if you don’t fall within the guidelines you will not be able to get a mortgage at all, however.  There are smaller lenders that do not follow the same guidelines that the bigger companies do, and they may be more willing to work with you to find a solution.

 It is important to meet with an attorney and a mortgage banker to figure out how these changes affect your goals in a divorce, and to modify what you have been doing to make sure you will qualify for a mortgage when you need one.

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.

 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.