Minnesota Divorce and Child Custody

The issue of child custody and parenting time can be contentious in divorce proceedings.  I always advise people that it is best to resolve disagreements about child custody and parenting time amicably.  This can happen in discussions between the parties, but more likely it will happen in negotiations between the attorneys or in mediation.

If you and your spouse have a significant disagreement about child custody or parenting time, you probably need a lawyer.  This is especially true if your spouse has his or her own attorney.  If you are unsure about whether you should hire an attorney, you should do a simple cost / benefit analysis.  What do you stand to lose?  What do you stand to gain?  What is it worth to you?

There are many nuances to Minnesota child custody laws.  And even though there is a Minnesota family law statute that sets out 13 factors a court should consider, there are dozens of important appellate court decisions interpreting those factors and describing how they apply in very specific fact situations.

It is important to me that my clients understand all of the 13 factors and see how they apply, or do not apply, to their specific situation.  Sometimes I encourage a client to do “homework” so he or she has knowledge that is important to a custody and parenting time decision.  Sometimes I might suggest that a client make some changes to his or her routine.  Sometimes I might suggest that a client make changes to his or her living situation.

If you are thinking about moving out, you need to obtain legal advice first.  While from a strictly legal perspective whether a parent moves out should not impact the application of the 13 factors, nonetheless, when a parent moves out of the home, he or she sends a very clear signal to the court about who the real primary parent is.  A parent should never move out until he or she has had the opportunity to review the move with an experienced attorney.

If you are considering a divorce, you should feel free to call me to schedule a divorce case analysis.  I am not able to give out legal advice over the telephone to people who are not already my clients.  But, I am more than happy to meet with you for 45 minutes at no cost to discuss your case.

I am Daniel Fiskum.  I am a divorce lawyer and family law lawyer based in Minnetonka, Minnesota.  I have practiced family law in the Twin Cities for over twenty-one (21) years.  My office, Fiskum Law Office, P.A., is conveniently located in the Carlson Office Towers at the intersection of Highway 494 and Highway 394, in Minnetonka.  Please feel free to call me at (952) 270-7700 to schedule a divorce case analysis.

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Minnesota Divorce and Daycare Costs

Often, people who divorce have young children who go to daycare during the day or after school.  Daycare costs can be a significant part of a family budget, especially when families are divorced.

In Minnesota, divorce courts require each party to contribute towards daycare expenses and after school care expenses.  As long as these expenses are either work-related or education-related, each party has to share in them.  (If you hire a baby sitter because you are going out for a night on the town, your former spouse does not have to help pay for that expense.)

Calculation of reimbursement for daycare expenses and after school care expenses is part of the child support award, but the reimbursement amount must be specifically set forth in the divorce Judgment and Decree.  Typically, each party is required to contribute towards daycare and after school care expenses based on a ratio of their respective incomes.  If the income disparity between spouses (after including alimony or spousal maintenance) is, for example 60/40, then one spouse has to pay 60 percent of the daycare costs and the other spouse has to pay 40% of the daycare costs.

If you have any questions about this, please feel free to call me, attorney Dan Fiskum, at (952) 270-7700 to set up a free divorce case analysis.  My office is conveniently located in the Carlson Office Towers at the intersection of Highway 494 and Highway 394, in Minnetonka, Minnesota.  We are  near the Ridgedale Shopping Center.

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Documents Needed for MN Divorce

If you are considering getting divorced, it is a good idea to assemble the documents you may need to refer to in the future and put them somewhere for safe keeping.  These documents can include state and federal income tax returns, monthly checking account statements, check book registers, house titles, deeds and abstracts, documentation from the sale or purchase of a home, documentation from the purchase of an automobile, monthly credit card statements, and recent paycheck stubs.

These are just a few of the primary documents that you should set aside.  Fiskum Law Office has developed a comprehensive list of necessary divorce documents and complimentary copies are available upon request.  Just send an e-mail request through this website.

Keep in mind that you should not open your spouse’s mail and you should not open his or her e-mail or other password-protected Internet accounts.

If you can assemble these documents before starting the divorce, you will save time and money.  During the divorce p0roceeding, the parties and attorneys can engage in a process called “discovery.”  Essentially, an attorney can formally demand that an opposing party produce copies of any documents that might lead to the discovery of admissible evidence.  All of the documents described above are relevant to a divorce proceeding and would be have to be produced.

The problem with discovery is that it is expensive.  It often takes hours or days to respond to formal discovery requests.  Also, it is difficult to obtain a document if it has already been destroyed.  You can get copies of some documents (summaries of tax returns, copies of bank statements, etc.) but some documents are not easy to get, once they have been destroyed.  This includes documents like check book ledgers, documents relating to the purchase and sale of a home, etc.  Also, it is very difficult to subpoena documents that are kept out of the State of Minnesota.

If you have any questions, feel free to call me – Dan Fiskum – at (952) 270-7700.  I cannot give specific legal advice over the telephone, but I am happy to set up a free consultation to discuss your divorce case.

MN Paternity and Custody

The are a lot of children whose parents were never married.  Often I am asked questions, by both fathers and mothers, about parental rights in these situations.

Here’s the deal: in Minnesota, if you are the father of a child born out of wedlock, you have no parental rights unless and until a district court enters an Order granting these rights.  You do not share legal or physical custody, you do not have the right to parenting time, you do not have the right for the child to have your last name, etc.  To repeat – you have no parental rights unless and until a district court enters an Order granting these rights.

What about the Recognition of Parentage that the father signed when the child was born?  The Recognition of Parentage gives the mother rights and it gives the county authority rights.  It gives them the right to make the father pay child support without a court proceeding and order to determine parentage.  Thats all that a Recognition of Parentage does.  It “gives” the father the obligation to pay child support, but no other rights.

Why is this?  Because maternity is a matter of fact, paternity is a matter of opinion.  Under Minnesota common law, which has been incorporated into statute for decades, if parties have a child and are not married, the mother has sole physical and sole legal custody, and is entitled to receive child support from the father.

So, what should a father do?  A father, who wants to be involved in his child’s life, should bring a proceeding to establish parentage (if he did not sign a Recognition of Parentage), physical and legal custody, parenting time, and child support.  Usually a proceeding like this can be resolved by an amicable agreement between the parents.  The agreement is submitted to the court and the court enters an order based on the agreement.

Usually, but not always.  If there is no agreement, in Minnesota there are various mediation and evaluation processes that the parties can go through.  If there still is no agreement, then the court decides.

There are things that a father can do to greatly improve his odds of success.  Contact me if you want to know more.

MN Divorce and the IRS tax exemption

Often I am asked about which parent is entitled to claim the income tax dependency exemption for minor children after divorce.  The answer is “it depends.”

In Minnesota, the divorce court may award the right to claim the income tax dependency exemption to either parent.  Courts frequently allocate the exemptions equally, provide that both parents remain current in their respective support obligations.  If there is only one child, the court will often award the exemption to one parent in even-numbered years, and to the other parent in odd-numbered years.  This language will be included in the divorce decree. Though the court has the right to do this, it probably will not do it unless one party requests it.  In other words, if you forget to ask for it, the court will typically not do anything on its own to include this language.

If the divorce decree is silent about which parent gets to claim the income tax dependency exemption, then the Internal Revenue Code governs.  Essentially, the IRS rules provide that after divorce, the parent who has the child in his or her care more than fifty percent of the time is entitled to claim the exemption.  So, the parent who has the children in his or her care for at least six months and one day is entitled to claim the exemption.

So, what do you do if you have the kids most of the time but your ex-spouse claims the dependency exemptions anyway?  File your tax return, claim the exemptions, and include a certified copy of your divorce decree and a letter explaining why you are entitled to claim the exemption.

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Plymouth MN Divorce Guru

Often I am asked about the circumstances under which a divorced parent can modify the parenting time arrangement that they have with their ex-spouse.  Modification can be needed for a variety of reasons – people change  jobs, children get older and get involved in more extra-curricular activities, people have either more time or less time to parent.  If the parties agree, modification is very easy.  The parties simply sign and submit a proposed Order to the court.

But as we all know, the reason divorce lawyers exist is that people often cannot agree.

So, generally speaking, in order to modify parenting time the person seeking the modification needs to show that the modification would serve the child’s best interests.  Note that I am talking about modification of parenting time, not modification of physical custody or legal custody.   In order to modify physical custody or legal custody, the person seeking the modification usually has to show that the child is endangered by the current arrangement.   Not so with parenting time. All that is necessary is a showing that it would be better for the child if parenting time were modified.

Unless there is an emergency, or unless one parent consistently and willfully interferes with parenting time, a person cannot seek modification of parenting time until one (1) year has elapsed since entry of the divorce Judgment and Decree.   The statute pertaining to modification of parenting time is Minn. Stat. 518.18 (read it here: https://www.revisor.mn.gov/statutes/?id=518.18).  However, if there has been a previous, post-decree motion to modify parenting time, then one has to wait for two (2) years to bring a motion to modify (except in the case of an emergency or persistent, willful denial of parenting time).

So, how do you make the case?  You have to clearly express reasons, that will appear credible to a judge or referee, why the child will be better off with the modified schedule.  You have to put these reasons in writing, in a document called an “Affidavit.”

Can you do this yourself?  Yes.  Can you do a good job?  Maybe, but unless you are a divorce lawyer, probably not.  Think of it this way – anyone can sit down at a piano and play “Chopsticks.”  Very few people can sit down at a piano and play a Beethoven piano sonata.  You need to tell a story.  You need to make the children and their problem with the current parenting time arrangement real to the court.  You need to sound reasonable, credible, and “normal.”  If you paint your ex-spouse as the Joseph Stalin, the court is probably not going to believe you.  Arguments ad hominem usually do not work. But, if you say something like: here are the issues, here is how these issues impact our children, and here is a solution that improves the situation of our children, the court will listen.

If you have questions about this, feel free to call me at (952) 270-7700.

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