Often in divorces, the parties are not on an equal playing field to start. When there are children involved, one party is usually the primary caretaker and is footing the bill for caring for the children without the help of the parent that may have moved out of the home. Or there may be a situation where one party was the breadwinner and supported the other spouse, and now isn’t providing the support that the spouse needs to survive. Another situation is where one party does not have the resources to pay for an attorney, which is necessary to continue in the divorce proceedings.
When situations like this arise, generally there is a hearing for temporary relief early on in the case. Temporary relief allows the parties to go to court and ask for support prior to the final resolution of the case. This allows the party in the lower financial position to be on a level playing field and not feel desperate to settle and reach a final resolution which may be detrimental to their overall position.
Another purpose of temporary relief hearings is if the parties are not able to come to an agreement on how parenting time and custody should be, but are not ready to finalize all of the details of the divorce. The judge is able to listen to both parties’ positions and make a decision that will give the children the most stability they can have while the parents are going through the remainder of the divorce process.
While temporary relief hearings are a useful tool to have in many situations, not all judges like to hear them. It may be more beneficial if the parties are able to cooperate at all to attend mediation and see if they can resolve the disputes outside of court. This gives the parties some power in shaping their future, and it is generally less contentious; with temporary relief hearings, both parties submit materials to the court that are often hurtful to the other party. The affidavits that each party write generally contain information that does not need to be said if the mediation process is used.
Posts Tagged ‘Divorce’
Using Temporary Relief Motions in Divorce in Minnesota
Monday, June 21st, 2010The discovery process: determining what makes up a marital estate in Minnesota Divorce
Monday, June 14th, 2010Often in a divorce, the parties do not trust each other to fully disclose all of their assets or may believe that a spouse is intentionally hiding money or property from the other. A full and fair disclosure is necessary to be able to divide up the marital estate in a fair and equitable fashion, as is required by Minnesota Statute.
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.
What happens in Minnesota divorce when one spouse dies?
Tuesday, June 1st, 2010It is not very common that a person dies during the pendency of their divorce. What happens in that situation? How is property distributed?
Certain rights come with marriage by law. If an individual does not have a will, their property first passes to their spouse; the amount of property to the spouse may vary depending on circumstances, but the first portion of it will always pass in that way. Further, a spouse is able to claim a specific portion of an estate even if there is a will that does not specify they would receive that amount. In addition, if you are married your spouse is your beneficiary on retirement and life insurance unless they waive that right.
If a person dies during the pendency of the divorce proceedings, the property passes to the spouse as the parties are still married. It does not matter that there are proceedings that clearly show the parties do not get along. Until a judge signs a final divorce decree and it is entered by the court, the parties are legally married and entitled to all legal rights and privileges that come with it.
How and when is parentage addressed in divorce in Minnesota?
Monday, May 10th, 2010There are two unique situations where parentage must be addressed in a divorce action: when the parents were not yet married at the time of the child’s birth and when the wife is pregnant at the time of the divorce proceedings.
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.
How is parenting time determined in a divorce?
Tuesday, April 6th, 2010When parents have decided to get a divorce but nothing has been done in court yet, they may not agree on what parenting time schedule should be used or who should stay in the home until all is said and done. Other parties are able to agree temporarily on those issues, but do not agree on how it should be decided for a final resolution.
When parents cannot agree on a temporary parenting time schedule, the court is usually involved. Either party is able to request a hearing to set temporary parenting time. It is temporary because it is subject to change once the divorce is final, but it gives the parents a guideline to follow for what parenting time schedule to follow. This helps give stability to the children, as the parents are not going to continually fight over which day each of them will have the children at their residence.
Temporary hearings are available to address almost every issue in your divorce. While it is all subject to change, temporary arrangements do help settlement negotiations to progress. Judges are not bound by what they temporarily award for custody, but it often is a good indication of what the judge would award if the issues are brought before the court for a trial.
While they are helpful tools to have, temporary hearings are not used in every case. Many times the parties are able to agree enough to handle a temporary schedule and they are not forced to bring the issue into court early in the proceedings. They are used more often in cases where the parties are unable to communicate and agree on what is in their children’s best interests.
How does military status affect my divorce?
Monday, March 29th, 2010If either party to a marriage or other family law matter is an active service member, there are protections in place that may prohibit the action from going forward without them. This protection is under the Servicemembers’ Civil Relief Act of 2003 (formerly known as Soldiers’ and Sailors’ Civil Relief Act of 1940) . The purpose of this is to allow individuals to serve our country without the worry of legal actions occurring where they are unable to participate. Included in this are all civil actions, including divorce, paternity and child custody. Not included are hearings to determine child support.
If a servicemember comes home from active duty and finds that a judgment was entered in court without their consent or knowledge, the service member may be able to have the judgment voided. If the service member finds out that some legal action has started, they are able to request a stay, forcing the court action to be postponed.
This act can protect servicemembers from having to make important decisions when they are not fully able to devote attention to the matter. Both parties’ military status is required to be disclosed at the start of any legal proceedings, so the court will be on notice from the start if there are special issues in your case. For more information on this act, visit the Department of Defense’s website.
Trials in Minnesota divorce cases
Monday, March 15th, 2010Trials in Minnesota divorce cases are very rare. In practice, probably 99% of cases settle either prior to any court involvement or during court. This is done by the parties agreeing to the issues, generally with the help of a neutral third party (a mediator) or just the parties’ attorneys negotiating a settlement that both parties are comfortable with. If a case goes to trial, generally no one is completely satisfied with the results.
However, there are some cases that just need to be tried. It may be that one party is completely unreasonable and will not come to the table to negotiate a settlement, or it may be that one party just needs their day in court for closure and to feel as though they have really been heard.
Whatever the reason for the trial, in divorce cases they are always “bench trials”, meaning that the judge decides all issues and there is not a jury present. Both sides are able to present witnesses and submit materials into evidence for the court to consider. Then, each side tells its story through testimony. Usually the court will ask the attorneys for written submissions at the end. The court has up to 90 days to issue an order resolving the matters discussed in trial; it is uncommon that you would walk out of your divorce trial and know exactly what the court is going to rule on all issues on that day.
If you have a case that is going to trial, it is a very good idea to retain an attorney to represent you. When you represent yourself, you are held to the same standard you would be if you were an attorney yourself. You are expected to know the rules of procedure, how to examine witnesses, how to present evidence to the court, and what objections are proper. The court does not give much leeway to individuals representing themselves in a trial, and you can get yourself into trouble when you don’t know what you are doing. The cost of retaining an attorney upfront is probably much less than the cost of trying to fix problems that may occur if you try to handle a trial unrepresented.
Who decides what religion to raise minor children in Minnesota divorces and custody battles?
Monday, March 8th, 2010In the news recently, there has been coverage of a case in Chicago where the parents disputed what religion to raise the child and the father faced contempt of court for exposing the child to his religion. While standards may be different in Illinois, it does raise the question, who decides what religion minor children will be exposed to?
In the state of Minnesota, religion is considered an issue dealt with through legal custody. If the parents can agree on the bigger issues in a child’s life, such as religion or where the child will attend school, the court will often grant joint legal custody and allow the parents to make those decisions together. However, if there has been domestic abuse or there is a clear indication that the parents are unable to communicate and work out disagreements over legal custody matters, the court may grant sole legal custody to one parent over the other.
If one parent has sole legal custody and the other parent violates it by exposing the child to another religion, the parent with legal custody may file a motion asking the court to hold the offending party in contempt of court. This basis for this is that the offending party violated a court order and is not following the terms that the court set out. The offending party is given the opportunity to admit or deny that they violated the order, and if the court finds they did violate it then purge conditions must be set to rectify the situation. The party would not go directly to jail; jail is not meant to be a punishment, but rather a tool to gain compliance of that party.
If you do not have legal custody but would like the court to consider allowing you to address your religious beliefs or other matters, you are able to file a motion with the court. The court may look at the issue and if the judge finds it is in your child’s best interests, they may order something other than what the parent with sole legal custody would like.
If you have questions about legal custody and your rights, call the attorneys at Heimerl & Lammers for a free initial consultation today.
Determining a spousal maintenance award in Minnesota Divorce
Monday, March 1st, 2010Spousal maintenance, formerly known as “alimony”, is not as common as is often believed. The typical spousal maintenance case involves a long-term marriage where one spouse did not work outside of the home, but rather stayed home and cared for the children or the household. They either have no higher education or it is outdated, causing the need to obtain more schooling to be able to work in the field.
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.
will domestic abuse affect my custody or divorce case in Minnesota?
Monday, February 15th, 2010Sometimes when parties are nearing the point of divorce or a custody battle, there is an incident of domestic abuse that occurs between the parties. If the domestic abuse extends to the children, where they either witnessed or were part of the abusive event, the court may restrict parenting time or any contact between the abuser and the children. The effect of this is clear on any custody dispute: if there is a protective order in place barring a party’s contact with their children, they will not be able to have contact through the family matter. The provisions of the Order for Protection will extend to the family law case, and short of the parties agreeing to modify those terms, it will last the full time of the protective order (generally two years).
This can have long-term effects on custody as well. The abuser may not be prohibited from having any relationship in the future, but it is difficult to overcome an abusive past to reestablish a relationship with your children. The abuser and children will probably go through some reunification therapy and gradually work to develop a relationship and trust again.
If an Order For Protection only protects one parent from the other but the children are not involved, there will generally be parenting time involved. An Order For Protection does make it more likely that the court would order sole legal custody, meaning that the custodial parent would have the sole right to make the big decisions in the children’s lives. However, there would be parenting time arranged through a third party or through a safety center.
The parenting time awarded to parents in abusive relationships varies depending on the unique circumstances of each case. If you have questions about parenting time in your family law case, contact the family law attorneys at Germscheid, Heimerl & Lammers today for a free consultation.