Under Minnesota law, if a child was born previous to a marriage and parentage has not yet been addressed, then parentage will need to be addressed in a divorce action. The court can make determinations on parentage based on the agreement of the parties that the husband is the father. Also, if the parties signed a Recognition of Parentage form at the hospital, there is a presumption that he is the legal father and short of any competing presumptions, the court can use that to adjudicate him the father at the time of the divorce. Also, if there are remaining questions about paternity, genetic testing is available through the court.

A more difficult scenario is when the wife is pregnant at the time of the divorce. A husband is presumed under Minnesota law to be the legal father of any child born during the marriage or within 280 days following a divorce. If the wife is pregnant at the time of the divorce with another man’s child, the presumption can be outweighed by genetic testing or agreement of all parties. However, if both men and the wife agree, the issue can be addressed through a Recognition of Parentage being signed by the biological father along with a Joinder by the husband at the same time, after the child is born.

Addressing pregnancy during divorce is more difficult because the court cannot make determinations about paternity until after the child is born. Often in the court’s final divorce order, the pregnancy will be addressed by stating that a Guardian Ad Litem is appointed and that the parties will address the paternity issue in a hearing following the expected date of birth.

 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.

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.

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 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.

There are multiple methods of discovery.  The most commonly used in the divorce process are interrogatories and requests for production of documents.  Interrogatories allow each side to ask questions that require more in depth answers.  For example, if a party is making a claim for spousal maintenance, you can ask questions about their work history, educational background, and plans for the future. 

Requests for production of documents allow the two sides to exchange any documents that will be important in the divorce settlement.  Often this includes bank statements, tax returns, other proof of income, and medical records, to name a few.

Parties are also able to do requests for admissions, where you give a statement and the party is required to affirm or deny it.

Less common in divorces is the use of depositions, where the parties undergo questioning from the opposing side, under oath and on the record.  Both parties are present for depositions and a court reporter creates a transcript from the testimony.

All forms of discovery are technically under oath, and the other party and attorney have an obligation to make a full, honest disclosure.  There are remedies in the system if it is later discovered that they were keeping information from you.  Discovery is an important tool to use in order to make sure both sides are making informed decisions in the divorce.

If the Respondent misses the 30-day time limit to answer, the Petitioner is able to go back to the court, stating that the Respondent is in “default” and have the divorce processed anyway.  You may or may not have to make a court appearance, based on your specific circumstances.  Not all issues are always able to be resolved with a default, however.  if you have property out of state, or children out of state, you should consult with an attorney.  But the bottom line is not both parties need to participate in the process in order for the court to grant a divorce.

If you have been served with divorce papers, even if you do not want a divorce, it is in your best interest to respond within the 30-day time frame.  If you miss the deadline and the court enters the divorce without you having a say, it is very difficult to reopen the case later on.  If you have questions about what your rights are in the divorce process, contact a family law attorney today.  At Germscheid, Heimerl & Lammers, we offer free initial consultations.  Call us today to discuss your case.

 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.