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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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 College Tuition

I am sometimes asked about how the issue of college tuition plays into divorce proceedings in Minnesota.  The short answer is that it doesn’t.

I am aware of some state in which a court can require a parent to pay for their children’s college tuition as part of a divorce judgment and decree.  In Minnesota, courts do not have the legal authority to do this unless the parent or parents agree.  If a parent does not agree, then a Minnesota court cannot order that parent to pay for their children’s college tuition.

The reason for this is simple.  In Minnesota, a child is considered a child until he or she has attained the age of 18 and has graduated from high school, or up to age 20 if still in high school school, or married, joined the military, or otherwise emancipated.  Once any of these events occurs, the child becomes an adult.  The only exception to this is that a child who is developmentally disabled to the extent that he or she will not be able to become self-supporting can remain a “child” indefinitely.

Child support is an obligation of a parent to support his or her child.  Parents are not obligated to support their adult children.  Often parents choose to do so, but in Minnesota, the law cannot compel them to do so.  This means that a court cannot compel a parent to pay for the college tuition of his or her adult child.

Sometimes parents voluntarily enter into an agreement that allows the court to order them to pay college tuition.  Generally, I do not think this is a good idea, especially if the children are younger children.  It is simply too difficult to predict far into the future to know whether such an agreement is a good idea.  And of course, a parent can always voluntarily pay for his or her child’s college tuition, regardless of whether a court order requires it.

For parents who do agree to an order, I advise them that the order should have a limited dollar amount and should be contingent on the child’s attaining a particular grade point average.  A parent does not want to be stuck in a situation in which he or she has to pay exorbitant tuition for a child who is failing every class because he or she parties too much.

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MN Divorce and Government Shutdown

If you have been following the Minnesota news, you know that the Minnesota state government is going to shut down on July 1 because of lack of funding.  Only essential services will remain open.  This includes prisons, state mental hospital, and, fortunately, aid to local governments.

For now, the Minnesota court system is deemed “essential.”  This means that at least for the month of July, 2011, the court system will remain open.  No one is sure what will happen after July.  It is reasonably certain that after July, essential court activities will still occur – criminal court, for example.  It is unclear what will happen with other court functions.

But for now, if you are scheduled to go to trial in July, its still on.

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MN Family Law and Child Support

One of the most frequently asked questions that I get from people is “how is the amount of child support determined in Minnesota?”

A few years back, the Minnesota legislature created a set of rules that have been incorporated into what is known as the “Minnesota Child Support Calculator.”  You can see the MN calculator here: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx  This is the calculator as it appears on the MN Department of Human Services website.

Once the amount of parenting time is established, and once the parties’ incomes are known, the calculation is pretty “automatic.”  However, if you are a concerned parent, if you are a parent who, after the divorce, plans on spending as much time with your child as you can, you need to know that the amount of parenting time you receive has a dramatic impact on whether you receive, or pay, child support.

If you have parenting time between 45% and 55% of the time (that is, about half of the time) and your income is about the same as that of your spouse, then you will likely not have to pay very much child support.  If you have parenting time less than 45% of the time, then the odds are that you will have to pay child support.

This is a factor that you should take into account when negotiating parenting time.  I am not suggesting that this is the only factor.  Obviously, there are others: what is in the child’s best interest, what is your work schedule, what is the other parent’s work schedule, how old are the children, etc.  But, many people enter into a 50 / 50 parenting time arrangement, expecting that the other parent will actually be a parent 50% of the time, only to find out that the other parent doesn’t, and that costs associated with parenting time increase significantly.

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

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Minnesota Past Due Child Support

Often I am asked questions about how Minnesota divorce courts handle the issue of past due child support.  The language used to describe late, past due, and child support arrearages is not always applied consistently.  My  understanding is that the term “past due” child support refers to an unpaid child support obligation, and the term “child support arrearage” (or “child support arrears”) refers to unpaid child support in an amount that is the subject of a court order, something that is called an “arrearage order.”  https://www.revisor.mn.gov/statutes/?id=518A.53

Here’s the difference: child support arrears, that is, unpaid child support that has been identified in a court order, is subject to repayment at the rate of 20% of the ongoing child support obligation.  In other words, if a person is paying $1,000 each month for ongoing child support, he or she will also be required to pay 20% of that amount, or $200, to pay off the child support arrears.  So, if one owed $2,000 in child support arrears, he or she would have ten months in which he or she paid both $1,000 per month for ongoing child support, plus $200 per month towards the $2,000 arrears.

Keep in mind that child support arrears generate interest at the judgment rate.  The “judgement rate” is the interest rate established by the state court administrator pursuant to Minn. Stat. Sec. 549.09.  In 2011, the judgment rate for child support arrears is 4% per year, unless the debt owed is greater than $50,000.  In that event, the judgment rate is 10%.  In the above-example, it would actually take longer than 10 months to pay off the $2,000 arrears because the arrearage is accruing interest at 4% per year.

There are a variety of remedies that the public child support collection authority can use to collect child support arrears.  They can “shame” the obligor (“obligor” is the fancy legal term used to describe the person who owes the money) into paying by publishing his or her name publicly, on posters, in media presentations, and on-line.  I am not a big fan of this.  I think it is akin to the Pilgrims placing people in stocks in the public square.  The problem is, children are smart.  They know that in some sense they are one-half “Mom” and one-half “Dad.”  When their parent is identified by name and publicly ridiculed, that impacts the child.  Children want to believe that both of their parents are good, and are willing to forgive a significant amount of bad behavior just so they can have a relationship (even if only in their mind) with both parents.  Unfortunately, the ghouls who inhabit the Minnesota legislature lose sight of that fact.

The collection authority can also suspend the driver’s license of a child support obligor with unpaid arrears.  This way, the obligor cannot drive to work and cannot hope to earn enough money to pay child support arrearages.  This is a very clever tactic on the part of the public authority.  It pretty much insures that child support arrears will never be paid.

The collection authority can also suspend recreational licenses (fishing licenses, hunting licenses) and it can suspend professional licenses.  And, it can also have the person who does not pay arrears arrested and confined to jail as part of a contempt proceeding.

If you owe past due child support or child support arrears, you should consult with an attorney.

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Minnesota Child Support

The Minnesota Child Support laws underwent a significant change in 2007.  The impact of this change is significant.  Under the old law, the parent who had physical custody of the children received child support.  Whether that parent (the physical custodian) worked or did not work had nothing to do with the calculation.

Today things are different.  Child support is based on the amount of parenting time each parent has. And both parents are expected to work.  If the person who has most parenting time is entitled to receive child support, he or she will receive less is he or she is not working.

The legislators who drafted the new child support statute believed that by linking child support to parenting time instead of physical custody, they would take away the conflict that frequently arose over custody.  They did.  Now the conflict is about parenting time.

The Minnesota child support statute requires a series of calculations.  They are not particularly complex, but they are a bit time consuming.  When I calculate child support, I use a computer program that is available on the Internet free of charge.

Here is a link to it: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx

Basically all you need to do if fill in the blanks.

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

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Minnesota’s child support law

People who are getting divorced in Minnesota often ask questions about Minnesota’s child support laws.  The Minnesota child support statute changed significantly in 2007.  If you were divorced before 2007, you are probably operating under the “old” system.  If you were divorced after 2007, you are operating under the new system.  You can read the entire Minnesota child support statute here: http://www.revisor.mn.gov/statutes/?year=2006&id=518A

The main difference between pre-2007 and post-2007 child support laws is the method by which child support is calculated.  Under the old law, the key element was which parent had physical custody.  The parent with physical custody was owed child support by the other parent.  The amount of support was a percentage of the other parent’s net income, or take-home pay: 25% for one child,30% for two children, 35% for three children, 39% for four children, and so on.

The new child support law looks at the income of both parents.  Now, which parent has physical custody has nothing to do with it.  The important concept is “parenting time.”  Under the new law, each parent has a child support obligation.  The amount is determined by looking at each parent’s gross (before tax) income.  The calculation is fairly complex, and I use a computer program to figure it out.  You can use the same computer program I use by going here:  http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx

However, now in Minnesota, the amount of parenting time has a direct impact on the amount of child support.  The more parenting time one has, the less child support he or she has to pay.

Let’s face it folks: when people get divorced, its mostly about the money:  Who gets how much.  Who pays what bills. 

I’ve been praciticng divorce law in Minnesota since 1992.  Back then, people would fight about who got physical custody,  because the “winner” would receive more money.  The legislature thought that by changing the child support law they would create a system that was more fair and that led to fewer disputes.  They were wrong.  Now people fight about parenting time.  And, the “winner” still receives more money.

A lot of attorneys and others who comment on the state of family law in Minnesota would have you believe that divorce can be wonderful, that you can just spend an hour or two in mediation, resolve all of your differences fairly, reach a fair agreement and every thing will be great.  But, if your marriage relationship has come to the point where you are getting divorced, that should be pretty good evidence that you can’t get along, that you can’t have fair discussions and that you can’t reach agreements.  If you could do that, you probably wouldn’t be getting divorced.

So maybe its time to contact an experienced divorce lawyer?

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Minnesota Divorce and Daycare Expenses

People who are getting divorced in Minnesota often ask me about daycare expenses.  Usually, they want to know if their ex-spouse will have to contribute to their daycare or child care costs.  The answer to the question is “Yes,” provided that the child care expenses are work-related or education-related.

The Minnesota child support statute requires that an award of child support contain three components.  The first component is a dollar amount for what is traditionally called “child support.”  That means a cash payment from one spouse to the other that is intended to help pay for the child’s food, clothing, shelter, and other expenses.

The second component of a child support award is medical support.  This requires the person paying child support to also contribute towards the child’s medical insurance costs, and also the child’s medical insurance co-payments, uninsured expenses, dental expenses, occular expenses, etc.

The third component of a child support award is child care support, or daycare support.  This requires that a person paying child support and medical insurance support also pays child care or daycare support. 

These calculations to determine these obligation are somewhat complex.  I use a computer program to do it.  You can use the same computer program that I use if you go here: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx

Minnesota child support is determined by an analysis of the incomes of both parents.   A ratio of each parent’s income is established.  That ratio is called a “Percentage Income Calculation for Support.”  This is called “PICS” for short.

If the ratio of the parent’s income is, for example 55% to 45%, then one parent pays 55% of the child care costs and the other parent pays 45%.  However, there is a bit more to it than this, because of the child care tax credit that one parent will receive.  This is why the computer program I mentioned above is helpful.  The computer program calculates the tax consequences of the child care tax credit so you don’t have to do it.

The law says that a child support award, in order to be valid, must have the three components outlined above, and it must state a specific dollar amount for each of the components individually.  This is because one expense might change (and need to be modified) while the other expenses remain the same.

Obviously, child care support ends at some point.  Usually children who are twelve years old or older do not require child care.  As the need for child care decreases, the child care support obligation may reduce, and ultimately it will phase out.  However, the other two components of child support (basic child care and medical support) will remain in place until the child has attained the age of 18 and has been graduated from high school, or married, joined the armed services of the United States, or otherwise emancipated.

Feel free to call me with questions or concerns about Minnesota child support and Minnesota daycare support.  My cell phone number is (952) 270-7700.

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Online Divorce Scams

I spoke to someone yesterday who said she had paid $250 for so-called “online divorce.”  She said she didn’t get divorced and she didn’t get her money back. 

So called “online divorces” are a scam.  Do not waste your money.  Regardless of what the scammers say, you cannot get divorced online.  At best, all the so-called “online divorce” scammers can do is e-mail you some forms to fill out.  They cannot fill them out for you because they are not attorneys.   A non-attorney cannot fill out legal forms for you and file them with the court because that would be practicing law without a license, and that is illegal.

You cannot get divorced unless you file the correctly completed paperwork and pay the court filing fee.  In Minnesota, the court filing fee for divorce is $400 in most counties, and slightly higher in some counties.  If you have children and do not have an attorney representing each spouse, then you have to appear personally in court, before a judge or referee, for an in court review of the divorce documents.

Since the court filing fee is at least $400, it is impossible to get divoreced by paying someone $250.

Do not pay for divorce forms.  The divorce forms that you can buy on-line are garbage.  Minnesota has specific requirements that are different from those of other states.  You can get the best divorce forms for free right here: http://www.courts.state.mn.us/default.aspx?page=513&category=55

Now, just having the correct form does not mean that you know all you need to know about the law.  Generally speaking, you should hire an attorney.  But, if you cannot afford an attorney and need to get divorced, these forms are helpful.

How Long Do I Need to be in Minnesota?

People occasionally ask me how long they need to reside in Minnesota before they can file for divorce in Minnesota.  The answer is 180 days (which is six months).  You have to have resided in Minnesota for six months before you can file for divorce here.  If you have moved to Minnesota from another state, that state will have jurisdiction over your marriage and divorce proceeding, until you have been in Minnesota for six months.  This is a jurisdictional issue and I am not aware of any way to circumvent it.

Six months is also the magic number for child custody proceedings.  Under the Uniform Child Custody Jurisidiction Act, a child’s “home state” is the state in which a custody proceeding should take place.  Under the act, a child’s “home state” is defined as the state that the child has resided in for six months.  If you lived in Florida with your children and moved to Minnesota, Minnesota will not have jurisdiciton to enter an original custody and paernting time order, or to modify a custody and parenting time order, until you and the child have been in Minnesota for six months.

Minnesota will not have the legal authority to award spousal maintnenance unless the obligor (that is the sp0use who will pay the spousal maintenance) has some connection to Minnesota.  If you moved here from Missouri but your spouse stayed in Missouri, and if he or she has no connections to Minnesota, then even though you can get divorced in Minnesota, the issue of spousal maintenance will be reserved so that it can be pursued in the State of Missouri.

Child support is treated somewhat differently.  If you moved here from Missouri, for example, and brought the kids, and your spouse remained in Missouri, you can get an order for child support working in Minnesota.  Technically, the support order will come from a Missouri court, applying Missouri law to the child support obligor’s situation.  The county attorney’s office from the county in which you reside can work with the county attorney’s office in the foreign state to obtain a court order from the proper court in the foreign state.

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Minnesota Paternity, Parental Rights and Parenting Time

Here’s the deal: Maternity is a matter of fact.  Paternity is a matter of opinion.  Until the genetic DNA test results have been returned.  And, until a district court judge has signed a court order.

If you are a father and you are not married to your child’s mother, you have no parental rights unless and until you have a court order that says you do.  Signing a Recognition of Parentage at birth does not give you parental rights.  Getting your name on the child’s birth certificate does not give you parental rights.  Having and paying a child support obligation does not give you parental rights.

The county can (and most likely will) initiate a proceeding to obtain child support.  This proceeding will not give you parental rights.  It will create an obligation–you will need to pay support–but this proceeding will not result in you getting either joint legal or physical custody, and it will not result in you getting parenting time.

And, if you do not have any parenting time at the time the county brings its proceeding, you will end up paying more support.  You will incur the “no parenting time” surcharge on your child support obligation that, over a period of 18 years, could result in your paying tens of thousands of dollars more than you should otherwise have to pay.

If you have a child and are not married to the child’s mother, you should hire an attorney and get your parental rights established.  A lot of guys are really stupid about this stuff.  All they can think of is saving a few dollars on attorney’s fees so they can spend it on a new set of rims for their aging sport compact car.  What they do not realize is that their economic future is being designed for them by the government, and the government isn’t doing them any favors.

Best to lawyer up now.

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Minnesota Divorce and College Tuition

Sometimes people ask whether, as part of their divorce decree, the court can impose a requirement that their soon-to-be ex-spouse pay for college tuition for the children.  The answer is “No.”

In Minnesota, a divorce court has jurisdiction over minor children only until they become adults.  In most cases, a child becomes an adult when he or she reaches the age of 18 years and has also graduated from high school.  (An 18 year old or 19 year old who is still enrolled in high school is considered a child, at least for child support purposes).  There are other ways in which a child can emancipate before turning 18–getting married or joining the military are two ways that come to mind.

But, once a child has emanciapted, the divorce decree can no longer require a parent to support him or her.  And, a divorce judge in Minnesota cannot order a parent to pay for college tuition for his or her adult child. 

However, if the parties agree to it, a provision requiring one or both parents to pay for college tuition can be included in the divorce decree.  This has to be voluntary on the part of the person agreeing to make the payment.

Generally, I do not think this is a good idea.  The way I see it, if someone wants to pay for their child’s college tuition, more power to them.  But to agree to become obligated to do so doesn’t make a lot of sense to me.  Its hard to know the future.  Its hard to know whether you will be employed when your child starts college.  Its hard to know whether your child will study hard and get good grades, or use the four years of college to major in partying.  There are so many variables.  Its best to leave it out of the divorce decree and then pay for it (voluntarily) when the time comes.

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How To Modify Child Support in MN

People often ask how to modify child support in Minnesota.  Sometimes this process is not complex and it can be done without an attorney.   More often the process is complex and you need an attorney.  I always recommend that people have an attorney when going to court.  Of course, I’m an attorney.  What else would I say?  But, I know that some people cannot afford an attorney.

Here’s the deal: in order to modify child support, you have to argue (and prove) that there has been a significant change in circumstances that makes the terms of the current child support order unreasonable and unfair.  There is a rebuttable presumption that the terms of the current support order are unreasonable and unfair if an application of the Minnesota child support guidelines to the new financial situation results in a new child support obligation that is both 20% and $75 per month higher or lower than the current child support obligation.

If you do not understand what I just said, you need an attorney.

There are different rules that apply when child care ends, when a child turns 18 and graduates from high school, when a new child is born, etc.

If you lose your job, you need to formally serve and file a formal motion to reduce or suspend child support immediately.  The reason for this is that a request to modify child support is only effective ( retroactive) to the date that the motion was served. 

This is an important point.  Put another way: if you loses your job in January, and have no income, but you wait until July to ask the court to lower or suspend your child support, you are going to owe payments for January through June.  Even if you can show you didn’t have a job during that time, you will still owe the money.  You have to bring a motion, and if you do not, you owe the money.  Even if you didn’t have a job.  Some people say that this isn’t fair.  The court will apply the law and in effect say, “So what?” 

Iif you fail to bring a motion immediately, you will have child support arrearages that are harder to get rid of than a bad tattoo that you got on a drunken and debauched night when the ship was in port.  The only way to get rid of a child support arrearage is to pay it, with interest.  So, bring the motion immediately so that you do not accrue child support arrears.

Its not about “fairness.”  What you might think is “fair” is probably different than what someone else thinks is “fair.”  My experience is that people who pay child support disagree strongly about what is fair with people who receive child support. 

Forget “fairness.”  Its about following the law.  If you don’t know the law, you need to lawyer up.

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MN Divorce and Child Support

The Minnesota child support law were significantly revised effective 2007.  Under the new child support law, income from both parents is used in calculating the amount of support that is paid.  Income from a new spouse or new significant other is not used in the calculation.

An interesting feature of the new child support law is that each party receives a credit for child support they pay for other children who are not in their custody, and they also receive a credit for other children who life with them, but for whom they are not obligated to pay support.  This change was intended to make the law a bit more “fair.” 

Also, spousal maintenance is now considered income from which child support must be paid.

Another interesting feature of the new child support law is that the amount of child support that one pays (or that one receives) is related to the amount of parenting time.  Under the old law, child custody was determinative of the amount one either paid or received for child support.  Now, labels like “sole physical custody” or “joint physical custody” have much less significance.  Its all about parenting time.

This means that parents need to be very careful when making formal or informal concessions about parenting time.  A parenting might informally agree to 50/50 parenting time, not realizing that this will be come the norm, and that as a result, that parent may not be entitled to receive very much, if any, child support.  I do not think it is callous or crass to talk about parenting time and child support together.  The “best interests” of the child are paramount.  It is very possible that in many cases, it is in the child’s best interests to be with a primary parent who actually receives enough money in child support to be able to provide a reasonable living environment, healthy food and clothing.

If you are thinking about making an informal agreement with your spouse, you could be putting yourself in a position where you might lose tens of thousands of dollars of future child support.  If it is in your child’s best interests that he or she be raised by a primary parent (you) who receives an adequate amount of support, then you need to consider parenting time arrangements very carefully. 

As always, its best to lawyer up sooner rather than later.

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Income Tax Returns and MN Child Support

Often I am asked about modifying child support after the divorce decree has been entered.  Sometimes a person receiving child support believes that child support payer has received a significant increase in income and that if child support were recalculated, the child support payment would be higher as a result.  The question is how to obtain information about the child support payer’s new or increased income after the divorce is concluded.

There is an easy way and there is a more difficult way.  The easy way is to demand a copy of the person’s most recent federal and state income tax returns.  There is a provision of the Minnesota child support statute (Minn. Stat. 518A) that allows the person receiving child support to demand and obtain copies of the other person’s state and federal income tax returns every two years.  In fact, the statute also allows the person who is paying child support to obtain copies of the payee’s income tax returns, too.  This is because both person’s incomes are used when child support is calculated or adjusted.

The more difficult way is to notice a motion to modify child support and then engage in formal discovery.  If the motion is brought in the administrative process, the person seeking the information may need the approval of the child support magistrate in order to enforce the request.  If the request for information is reasonable, the magsitrate will likely grant the request.  If a person owns his or her own business, there might be information about his or her income that is not disclosed on a personal federal or state income tax return.  Often, people can hide income in their business by having the business pay their personal expenses–their car payment, car insurnace, food, rent, clothing, etc. All of the payments that a person’s business makes for his or her personal expenses is considered income to that person.  In a case like that, the party seeking to modify child support may need to conduct some discovery in order obtain all the information that is needed.

If you have any questions about this or any other Minnesota divorce issue, feel free to contact Minneapolis divorce lawyer Dan Fiskum at (952) 270-7700.

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The Future of Divorce in MN

I have practiced divorce law in Minnesota since 1992.  During that time, there have been significant changes both to the law, and also changes to the court system itself.  In my opinion, the most significant change to divorce law in the past 20 years is the change to the way child support is calculated.  Now, the denomination of “physical custody” has little meaning or impact.  A parent who wants to avoid paying child support simply argues for greater parenting time.  They tell the court that the custody label is not important, but they should be able to spend approximately equal parenting time with their children.  This in turn means they pay significantly less child support.  For better or worse, many courts seem to accept this argument.  If you are an attorney, this makes it even more imperative that, regardless of which party you represent, you carefully develop and present a compelling and cogent argument for your client’s position, whether in Early Neutral Evaluation, in mediation, at a Temporary Relief hearing, or at trial.

However, I think the most significant change in Minnesota divorce practice has not yet fully played itself out.  This change has to do with money, or more correctly, with the lack thereof.

The court system is in a financial crisis.  This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media.  I have read some of his interviews, and I have to say that I think he is right.  (I also have to disclose that, technically, I work for the Minnesota Supreme Court.  My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.”  Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)   

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota.  The court filing fee is now $400.  It could increase.  It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court.  These are the costs that are easy for people to recognize.

However, there are other costs.  The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly.  Now, judicial officers are talking about parties using private evaluators.  Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Courts are implementing steps to cut down trial time by limiting the time that each side has to present his or her case to the court.  Sometimes the limitation can seem arbitrary.

Some parties are using “Special Masters” to conduct “private” divorce trials.  This is similar to binding arbitration.  I am personally opposed to the use of Special Masters because my experience is that there is a network of attorneys and mediators who know each other and have biases in favor of each other.  A judge or family court referee is not allowed to practice law.  This is appropriate, because it takes the judicial officer out of the “network of friends” or attorneys that know each other and meet up at Bar Association meetings.  Sometimes I get decisions from a judge that I or my client disagree with.  I often tell my client that the judge really did exercise his or her best judgment, and that he or she does not have a stake in the outcome, that he or she does not have any connection to the attorneys or expert witnesses because he or she is a judge.  The appearance of impartiality is important.

I cannot say the same thing about Special Masters.  Special Masters act in the role of judge one day, and attorney the next.  They have biases, and they have commercial and financial relationships to other attorneys and expert witnesses.  These relationships can get in the way of a fair judgment.  The problem is, because of the process of self-justification that everyone engages in, a Special Master cannot always see his or her bias.  (For more on self-justification and how this negatively impacts a fair and impartial judgment, refer to the books “Mistakes Were Made (But Not By Me).”

Of course, the persons who act as Special Masters who read this entry are already in denial–saying that I do not “get it” and that while others might be biased, they certainly cannot be biased.  To those Special Masters, I say “read the book “Mistakes Were Made (But Not By Me).  Then re-read it until you get it.”  Denial is extraordinary powerful.

I predict that, in the future, more and more costs of getting divorced in Minnesota are going to be shifted to the parties.  I also think that the results of the proceeding will not be as satisfactory.  People will walk away from legitimate claims and positions because they cannot afford the cost.  The financially advantaged party will prevail, while the financial disadvantaged party will suffer.

I think this is an unfortunate, and unavoidable consequence of the lack of sufficient funding.

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MN Divorce and Income Tax Exemptions

Often people who divorce in Minnesota forget to address the issue of the income tax depdency exemptions for their minor children.  This issue should not be overlooked because, cumulatively, it could save a spouse tens of thousands of dollars on his or her income tax return.

From the perspective of the Internal Revenue Service, after parents are divorced, the parent who has the children in his or her care more than 6 months out of the year has the right to claim the income tax dependency exemption for the children.  However, regardless of what the IRS says, a Minnesota divorce court can award the exemptions to the parent who has the children in his or her care less than 6 months out of the year.  They do this because both parents are liable for support and both parents should be able to claim the exemptions.

If there is one child, usually courts order that the parents alternate claiming the exemption from year to year.  If there are two children, usually each parent is awarded the right to claim one exemption.  If there is an odd number of children, usually the exemption for the odd-numbered child is alternated between the parents year to year.

If a person who is getting divorced has young children, he or she could be claiming the income tax dependency exemption for 15 or more years.  If you do the math, the cumulative impact of this is worth a very significant amount of money.

Do not overlook the income tax dependency exemptions when getting divorced.

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