Archive for October, 2013

Changing a Bad Order

October 30, 2013Alimony, Attorney's Fees, Child Custody, Child Support, Contracts, Divorce, Spousal MaintenanceLeave a comment

Changing a bad order is not easy, but if you have received an Order that is incorrect or you do not agree with you can try to change it by making a motion for amended findings (depending on the type of order).

The purpose of a Motion for Amended Findings is to permit the trial court a review of its own decision.

Accordingly, when you seek to challenge established findings, your motion must both identify the alleged defects in the challenged findings and explain why the challenged findings are defective.

When bringing a motion for amended findings, it is no enough to show that the proposed amendments are justified by the evidence. Rather, when claiming that the record does not support the findings, you have the burden of addressing the evidence on record, explaining why the record does not support the trial court’s findings and why the alternate proposed findings are necessary.

In doing so, you are limited to the files, exhibits, and minutes of the court, and may not rely on evidence that is not part of the record.

Marital and Nonmarital Property in Minnesota

October 21, 2013Alimony, Alternative Dispute Resolution, Antenuptial Agreements, Divorce, Prenups, Spousal MaintenanceLeave a comment

Minnesota courts are required to equitably divide marital property. The term “equitably” does not mean equally, and though the division of marital property is generally done equally, at times there are circumstances that would make an equal division unfair.

Whether property is marital or nonmarital is a question of law. All property, real or personal, acquired during a marriage is presumed to be marital property. This presumption is overcome by showing that property is nonmarital, meaning any real or personal property, acquired by either spouse before, during, or after the existence of their marriage, which is acquired before the marriage or is acquired in exchange for or is the increase in value of property acquired before marriage. Nonmarital property includes property that is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse. For nonmarital property to maintain its nonmarital status, it must either be kept separate from marital property or, if commingled with marital property, be readily traceable.

The present value of a nonmarital asset used in the acquisition of marital property is the proportion the net equity or contribution at the time of the acquisition bore to the value of the property at the time of purchase multiplied by the value of the property at the time of separation. The remainder of the equity increase is characterized as marital property.

Except for a proportion of appreciation that is determined exclusively by considering an identified nonmarital investment, any other appreciation is subject to the legal presumption that property acquired after marriage is marital property. Accordingly, the legal formula should be used to apportion an increase in the property’s value only if that property has an identified nonmarital component.

If necessary, it is possible to trace a current asset to a nonmarital source. To claim a nonmarital interest in a current asset, a party must show by a preponderance of the evidence that the asset was acquired in exchange for nonmarital property. Nonmarital assets commingled with marital asset may lose its nonmarital status if it cannot be traced to nonmarital source.

In short, if you are in the process of divorce, it is important to understand the difference between marital and nonmarital property in Minnesota. If you believe that some of your property might be non-marital, you will be required to provide the proof.

Grandparent and Third Party Visitation Rights in Minnesota

October 19, 2013Alternative Dispute Resolution, Child Custody, DivorceLeave a comment

There has recently been a great deal of litigation over grandparents’ right to see their grandchildren.

Generally speaking, the courts expect that grandparents will see their grandchildren during their own child’s parenting time. Unfortunately, there are situations where this doesn’t work, either because the grandparents’ own child is dead or absent, or has had his or her own parenting time severely restricted, or because the grandparents are estranged from their own child, and therefore neither parent is willing to allow visitation.

As a result, all states have created statutes authorizing their courts to award visitation to a grandparent under certain circumstances. In Minnesota, the courts have discretion to determine what is in the best interests of a child, including time with grandparents.

When the grandparents are the parents of a deceased parent of the grandchild, there is a process for the grandparents to establish rights to visitation by filing a document called a petition. The court can grant the grandparent’s request if it finds that visitation rights would be in the best interests of the child and would not interfere with the relationship between the child and living parent.

The court will consider things such as the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the request.

A petition can also be filed separately and outside of a divorce, paternity, or other legal action if the minor child has lived with the grandparents for a year or more. If that occurs, and the parent subsequently decides to remove the child from that grandparent’s home, the grandparents may petition the district court for an order granting them reasonable visitation rights to the child.

In these cases, the court must consider the amount of contact between the parents or grandparents and the child prior to the filing of the petition. Obviously the most important consideration here will be the extent and quality of the grandparents relationship with the grandchildren. The more extensive and positive the contact, the more likely it is that grandparent visitation will be awarded.

If a petition for grandparent visitation is denied by the court, a grandparent has to wait six months to try again, unless the parties all agree otherwise.

Grandparents’ rights to visitation are terminated when a biological parent’s rights are terminated and/or the child is adopted by a person other than a stepparent or grandparent. However, if a child is adopted by a stepparent, a grandparent or great grandparent may petition the court for an order setting visitation under certain circumstances.

It is important to note that these third party visitation laws do not protect only grandparents and the law has extended visitation rights beyond familial relationships.

Great-grandparents are expressly mentioned in two sections of the statutes, the ones dealing with a child with a deceased parent and the one dealing with children who have lived with a grandparent for a year or more.

Also, any other person who has cared for a minor, other than a foster parent, for two years or more may petition the district court for an order granting the person reasonable visitation rights to the child. The standard of proof is very similar to that where a grandparent requests visitation rights.

In these types of cases, the court is specifically required to consider the reasonable preference of a child, deemed by the Court to be of sufficient age to express a preference, which usually occurs around the age 12.

Answers to some common questions about child custody in Minnesota

October 16, 2013Alternative Dispute Resolution, Child Custody, Child Support, DivorceLeave a comment

What is joint custody? What is sole custody?

In Minnesota, joint custody means the condition under which both parties share custody and where neither parent’s custody rights are superior. The parties are required to consult and attempt to reach agreement with respect to decisions affecting the lives of the minor children.

There are two types of custody: Legal and Physical. Legal custody is the authority to be involved in the educational, medical, and religious decisions affecting the child’s life. Physical custody is the authority to be involved in the decisions involving the routine daily care of the child.

It is possible for parents to share one type of custody and not the other.

In a joint custody situation, each of the parties is required to provide advance notice to the other regarding these decisions so as to facilitate co-parenting communication, cooperation, and mediation if necessary.

Sole custody is the condition under which one party has sole authority to make these decisions.

This designation to one parent is often done if the parents have difficulty communicating, have different beliefs governing an issue, or if one parent is a significant distance from the other.

If both parents share custody does anyone pay child support?

The child support order, and whether one should be issued, depends on the actual parenting time schedule and each parent’s income.

Can a parent refuse to allow visitation if child support is not paid?

No. Failure to pay child support is not a basis for denying another parent their parenting time.

When will child custody be decided?

The custody and parenting time order will be finalized either when the parties reach an agreement or following a trial. In the interim, temporary custody and parenting time can be decided between the parties or by the court in a temporary order.

What if we cannot agree on a custody arrangement?

When parents cannot come to an agreement on custody and placement, the court will likely first encourage the parties to attend mediation. If mediation is unsuccessful, he court may also require a custody study or other evaluations to be completed for the court’s review in making a determination.

Can a judge order supervised visitation or no visitation?

A court can order supervised parenting time if a reason for the supervision is found by the court, which is usually to alleviate a safety concern about the children. The supervised parenting time can be supervised by a mutually agreeable person or at a facility.

Do courts favor the mother over the father?

By statute, the court may not prefer one parent or potential custodian over the other on the basis of sex or race of the parent or potential custodian.

In practice, parents may have perceived a preference based on the roles that each parent has assumed. For example, if the court is determining a parenting time schedule for a young infant and the mother is breast-feeding the child, that role will be a large factor for the court to consider.

What should I know before a custody trial?

Each custody trial is very different, and many steps must be completed prior to a trial. These steps may include mediation, and a custody evaluation. You should know what your burden of proof is and how you are going to meet that burden in an appropriate and effective manner.

Can I collect my own evidence to use if my custody case goes to court?

Evidence will need to be presented at trial or at motion hearings. Some of this evidence may be collected by the custody evaluator, depending on what is involved in your case. However, you should not rely on other individuals to present evidence.

In terms of gathering evidence, you have the right to gather evidence through formal and informal discovery. Discovery should be conducted appropriately to gather the necessary information.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a federal law that requires every state to enforce any child custody determination made in another state. It also prohibits a state from modifying any child custody determination unless it has jurisdiction and the state that issued the previous order no longer has jurisdiction.

The tone of your divorce is important…

October 15, 2013Alimony, Alternative Dispute Resolution, Attorney's Fees, Child Custody, Child Support, Divorce, Spousal MaintenanceLeave a comment

Divorce is one of the greatest stresses a human being can experience. While divorce is a personal decision for adults, it is a wrenching series of crises for their children.

When divorce strikes, the process of disassembling the family places tremendous demands on marital partners. Almost everything in your life that has been stable now must be reorganized. And this uncertainty can leave you in a state of chronic anxiety. But the people who take it hardest are your children. They didn’t pick the marriage, they have no say in the divorce, and sometimes parents ind it impossible to understand what divorce means to them.

Divorce is both a legal process as well as a psychological process. Beyond the obvious financial costs of a divorce are the emotional and opportunity costs that result. The legal process is important but the psychological process and how it is played out by the couple largely determines the tone and the nature of the divorce This is true regardless of whether the divorce involves only financial issues such as property division and alimony (spousal maintenance) or whether it also involves child related issues such as custody, parenting time, and child support.

If the divorce begins badly, it will usually be a long and nasty process. But, if it begins with consideration of the other person, there is a good chance that it will end amicably and constructively. The key is in controlling your emotions and trying understanding the emotional triggers of the other party at the beginning of the process.

An amicable and constructive divorce is possible only when both partners are ready to negotiate. Often times, one person has been thinking about starting a divorce for a long time, and the other person is shocked when he/she find this out.

If you are the one who wants out, you have to give your partner time to adjust, time to mourn and time to explore his/her own possibilities. If you push too fast, your spouse will retreat to the perceived safety of a lawyer who he/she thinks will “protect” her interests. If this happens, it will only increase the time and cost of the divorce. Being patient and considerate in the beginning will speed up the process and the ending.

You and your partner will probably have many misunderstandings and conflicts as you move forward as parents who are apart. It’s not easy for either of you, and your partner is sure to be a jerk at some point, make your life hard, or just complicate everything.

The most important thing to remember is that everything is in flux. What is true today won’t be true tomorrow or next week or next month. The situation is one that will be constantly evolving. It’s easy to feel as though the frustrations that are causing difficulties now will always be the case, but the truth is, that if you are patient, you will likely see things change.

Patience is one of the most effective tools in your possession. By staying calm, considerate, and focused you can gain an advantage that translates into a favorable deal.

Agreement is reached only after each party is ready to move from the wishful into the realm of the possible. Change takes place over time in small, constant, incremental movements. You cannot rush the process and the tone is important.