Spousal Maintenance in Minnesota

In the State of Minnesota, when determining spousal maintenance, there are two primary considerations – the amount of the monthly payment, and the duration, or length of time that the award or obligation will last.  Spousal maintenance is one area of the law in which there are many variables that can affect the amount of and duration of the award.

Generally speaking, the amount of spousal maintenance is determined by the need of the party seeking the award.  To determine need, the court looks at that party’s reasonable monthly living expenses, that party’s income, and then determines whether the income is sufficient to meet the need.  Then, it looks at the need of the person from whom spousal maintenance is sought, determines whether that person has enough income to meet his or her needs and whether there is enough “extra” income to merit an award of spousal maintenance to the other party.  There are many variables that need to be developed – earning capacity, length of time away from the job market, loss of earning potential are just a few.

To determine the duration of spousal maintenance, many courts look at the length of the marriage.  The age of the parties is also considered, along with her or his potential for learning new job skills and returning to the job market.

Spousal maintenance is very complex.  Unlike child support, there are no spousal maintenance guidelines in Minnesota.  If you are going to go through a divorce and you will need spousal maintenance, it is very important that you retain an experienced attorney.  Similarly, if you are going to go through a divorce and you do not want to pay spousal maintenance, you need an experienced attorney.  There are strategies for promoting or defending a spousal maintenance claim that only experienced attorneys will know.

If you would like more information, or if you would like to set up an appointment for a free divorce case analysis, feel free to call Minnesota attorney Daniel Fiskum at (952) 270-7700.  Daniel Fiskum is the owner of Minnetonka Family Law, P.A., located in the Carlson Towers in Minnetonka.  The address is 610 Carlson Parkway, Suite 1290, Minnetonka, Minnesota, 55305.  Minnetonka Family Law, P.A., is conveniently located at the intersection of Highway 394 and Highway 494 in Minnetonka, Minnesota.

Daniel Fiskum has been named a “Super Lawyer” by the Minnesota Journal of Law and Politics.  He is a 1992 graduate of the University of Minnesota School of Law, and a member of the divorce section of the American Bar Association, and a member of the Minnesota State Bar Association.  He has practiced family law in Minnesota continuously since 1992.

 

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Important Change to Spousal Maintenance Law

The Minnesota legislature enacted a very important change to Minnesota spousal maintenance laws.  The change became effective on August 1, 2016.

Under the new law, cohabitation is now grounds for terminating spousal maintenance.  There are some factual tests that need to be met, but in very many cases (if not most) a party will be able to do so.

This means that if you are receiving spousal maintenance, you need to think very carefully about whether you want to move in with a significant other.

This also means that if you are paying spousal maintenance and your ex-spouse is living with a significant other, you should call me to talk about eliminating your spousal maintenance obligation.

I offer a free in-office case review.  It is necessary that you bring a complete copy of your divorce decree to the meeting.  Call me now!

Call attorney Dan Fiskum and Minnetonka Family Law now, at (952) 270-7700.  Minnetonka Family Law, P.A., is conveniently located at the intersection of I-494 andI-394 in Minnetonka, Minnesota.  Attorney Daniel Fiskum is a Super Lawyer and member of the ABA Family Law Section, and the Minnesota State Bar Association Family Law Section.  He has practiced family law in Minnesota since 1992.

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Should YOU Make the First Move?

Often, people who know a divorce is coming ask me whether they should file first, or whether they should let their spouse file first.  My answer is “It depends.”

If the divorce is non-contested, if you and your spouse get along well and you know with certainty that you will reach an amicable, peaceful agreement without the input of court-appointed evaluators or a judge, then it probably does not make any difference who files first. In that case though, you need to ask yourself why you are getting divorced in the first place.

But, if you think that there might be a significant disagreement about custody, parenting time, or spousal support, you should probably file first.  There are several reasons for this.  One reason is credibility.  Another reason is that you get to determine when the “snapshot” of relevant facts occurs.  Both of these are important in divorce litigation.

Say, for example, that your spouse wants to get you out of the house promptly.  Ordinarily, this can be difficult to do in a divorce proceeding.  And, maybe you do not want to move.  Maybe you are expecting that the house will be awarded to you.

Well, your spouse can make up false claims of abuse.  He or she can embellish a description of a normal argument to make you sound threatening and abusive.  If you have already served and filed a divorce petition, this embellishment will most likely look like a reaction to what you have done.  In other words, it is more likely to be seen as positioning, and discounted.

What about the “snapshot” of the facts.  Well, if your spouse does not do very much to help out with the kids, but he or she knows that the divorce is coming in the future, he or she will try to do things to make it look like she is a more caring parenting than he or she is in reality.  He or she will start taking the kids to the doctor, to school, to daycare, and generally try to look like a Super Parent.

This isn’t necessarily a bad thing.  The problem is that if it is positioning for a divorce proceeding, it generally does not last after the divorce is final.  This is where a snapshot of facts is a handy point of reference.  If you start the divorce proceeding sooner, the spouse has less time to create the Super Parent facade.

Of course, you should only start a divorce proceeding when you are ready, and when you are certain that there is no hope for saving the marriage.  Postponing this decision does entail some risk, and you need to weigh the risk against the benefits and make a decision.  Ultimately, you are the only person who can make this decision.

For a free divorce case analysis, call Minnetonka attorney Daniel Fiskum at (952) 270-7700.

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The Role of Mediation in Minnesota Divorce

As I have written about in the past, mediation is an important component of the divorce process in Minnesota courts. There is also another process that is similar, but different. This process is known as “Early Neutral Evaluation.”

What is the difference?

In mediation, the role of the mediator is to help the parties reach an agreement. The mediator tries to understand each party’s position, and why it is that the party has that position. The mediator then tries to help the parties come to an agreement by making a bargain that gives each party at least part of what it is they would like to achieve.

Mediation is confidential, which means that the things that are discussed are not allowed to be brought up in court. And, if mediation is unsuccessful, the mediation is concluded without comment by the mediator.

The Early Neutral Evaluation process adds at least one element that mediation does not have. If, at the end of the session, the parties have not reached an agreement, the evaluator will give an opinion as to what he or she believes that court would likely do, if the case came to trial. This opinion is also confidential. It cannot be discussed in court. It is intended to give the parties the benefit of the perspective of an unbiased third party.

There are two kinds of Early Neutral Evaluations – “Social” Early Neutral Evaluations, which deal with custody and parenting time, and “Financial” Early Neutral Evaluations, which deal with support, maintenance, and division of property.

Sometimes a couple who is divorcing will go to both kinds of ENEs, and sometimes they will only go to one. It depends upon what their issues are.

I am an attorney licensed to practice law in Minnesota. I have practiced family law for over 20 years. I have been named a “Super Lawyer.” My own thoughts about mediation and ENEs are as follows:

1. I think that if you are going to mediation or to an ENE, you need the advice of an attorney. You cannot bargain effectively unless you know what the law is, and how the law will be applied to your facts. Mediators and ENE evaluators will not practice law for you, they will not give you legal advice, and if you give up more than you need to, they will not care, as long as the case is settled.

2. Sometimes mediation is appropriate. Sometimes the ENE process is appropriate. Sometimes neither process is appropriate. I have been involved in cases in which the opposing party is very angry and wants to punish his or her spouse. That party may use mediation solely as a way to cause the other spouse to spend more money than he or she needs to spend (mediators and ENE evaluators need to be paid). This unethical, but it is fairly common and there is no effective remedy.

3. Especially before financial mediation or a financial ENE takes place, you need to know everything that can be known about yours and your spouses finances. You and your attorney need to review bank statements, check book ledgers, paycheck stubs, and tax returns. You need to know what your retirement assets are worth. If there are pre-marital components to your assets, you need to know what these are worth. Otherwise, mediation and the Financial Early Neutral Evaluation can be a waste of time.

4. Most importantly, you need to have a sense of “proportion.” In other words, how much do you want to spend – in mediation or litigation – to achieve your goals? If you have a marital estate worth 5 million dollars, then it makes sense to spend an adequate amount of money to trace marital and non-marital claims, and to assert your rights during the divorce process. If you have a marital estate that is worth 5 thousand dollars, you should not be spending a lot of money on attorneys fees, or on mediation or an ENE. Its that simple.

If you have questions about this, please feel free to call me directly at (952) 270-7700. My name is Daniel Fiskum, I am a Minnesota Divorce Lawyer, and I would be happy to help you.

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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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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.

Retirement and Alimony in Minnesota

If you are paying alimony in Minnesota and are thinking about retiring, there are several things you need to know.  First, “alimony” and “spousal maintenance” mean the same thing.  In Minnesota, the divorce statute uses the term “spousal maintenance.”  However, I usually use the word “alimony,” because everyone seems to know what that term means.

Many people retire at age 65.  Many people who pay spousal maintenance or alimony are planning on retiring at age 65.  Of course, they expect their spousal maintenance or alimony to end when they retire.  They should not necessarily count on this.

There have been two recent cases at the Minnesota Court of Appeals that pertain directly to retirement and spousal maintenance.  Both cases were on their way to the Minnesota Supreme Court for review, but for various reasons the appeal was terminated.

Essentially, under the current law as established by the MN Court of Appeals, termination of a spousal maintenance obligation when someone retires at age 65 is not automatic.  The courts should consider a variety of factors, including whether the retirement is being done in good faith. 

If the spouse receiving the alimony objects and and make a “colorable” claim of bad faith, the burden shifts to the person paying alimony to show that the decision to retire was made in good faith.  If someone retires at age 65, this weighs in favor of a finding of good faith, but it is not conclusive.

The court also looks at the income from retirement asssets of the person paying alimony, to see whether there is enough income from that to support a continued alimony payment.  Court will not consider income from retirement assets accrued during the marriage.  These are considered to be marital property and to have already been divided as part of the divorce.  However, courts will look at retirement income from assets accrued either before or after the marriage. 

For some odd reason, the courts do not look at income from retirement assets that is received by the person receiving the alimony. 

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

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MN Divorce Proceeding – Temporary Relief

In a Minnesota divorce proceeding, the temporary relief hearing can be the single most important aspect of the case.  At a temporary relief hearing, the judge will make decisions on a temporary basis–decisions about temporary child custody and parenting time, temporary child support and temporary spousal maintenance, temporary occupancy of the home, and other issues.  Since most cases are settled and do not go to trial, often the decision made by a judge at a temporary relief hearing will closely resemble the final outcome of the case.  This is not always true, but very frequently it is.

The temporary relief hearing occurs early on in the process.  In some counties, an attorney can schedule a temporary relief hearing immediately after filing the divorce Summons and Petition with the court.  The opposing side has to have at least 14 days notice prior to the hearing, so this means that a temporary relief hearing can occur within about two weeks of the commencement of the divorce action.  In other counties, it can take a couple of months to get a date for the temporary relief hearing.

At a temporary relief hearing, information is submitted to the court in the form of written affidavits.  An affidavit is a sworn, notarized statement that sets for the salient facts.  Almost always, the person bringing the motion for temporary relief will submit an affidavit stating the basis for the various relief he or she is requesting.  And, frequently, the person bringing the motion will submit affidavits from other people–relataives, neighbors, employers–people who have personal knowledge about the situation.  For example, a relative may have personal knowledge of the parentig skills of a party and that knowledge might be relevant to the issue of temporary custody or temporary parenting time.  An employer may have personal knowledge of the work situation of a party–income, hours worked, bonus income–and that information might be relevant to the issue of the amount of child support or spousal maintenance.

The reason a temporary relief hearing is important is that it gives both parties an insight into how the judge may look at the case if the case went to trial.  My experience is that as divorce proceedings drag on, one or both parties gets emotionally and financially drained.  Even though they may not want to settle the case when it is new, after six months of litigation they tend to look at settlement more favorably, even if they cannot bargain for everything they want.  The Order for Temporary Relief that comes out of a temporary relief hearing tends to establish the parameters of the negotiations.

My personal view is that if a party has limited resources, it may make sense to consider investing most of them in a motion for temporary relief before going to mediation.  Mediation is very expensive.  I was recently involved in a mediation session that cost almost $1,000 per hour.  (The mediator was paid $300 per hour, the financial consultant was paid $190 per hour, and each attorney received their hourly rate too.)  If a party spends all of their resources in mediation and the case does not settle, there may be little cash left to bring a motion for temporary relief.

Of course, litigation strategies vary from client to client.  The biggest mistake many attorneys make is to approach a divorce proceeding without a litigation strategy.  For more information, please feel free to call me at (952) 270-7700.

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