Holiday Parenting Time in MN

If your Minnesota divorce decree is not specific enough about parenting time and holiday parenting time, I can fix it.  Sometimes problems develop after a couple is divorced.  There are disagreements about parenting time, for example, that were not contemplated at the time the divorce occurred.  If this describes your situation I can help you.

In Minnesota, the term “visitation” has mostly been replaced by the term “parenting time.”  So, if you are googling information about visitation, you should also try googling the phrase “parenting time.”

In Minnesota, when couples divorce, usually the divorce decree or court order has a provision relating to parenting time.  This can be very unspecific, and for example, it can say that parenting time is “reasonable and liberal.”  This phrase assumes that the divorce couple can cooperate without a specific set of rules to follow.

Other times, the divorce decree will provide a parenting time schedule.  For example, it can say that parenting time is every other weekend, from Friday after school through Sunday at 6:00 p.m, an overnight every Wednesday, and alternating holidays.  Or, the divorce decree can be even more specific, allocating specific holidays to each parent, with details including the pick up and drop off times and locations.

If you and your ex have problems with holiday parenting times, you need to resolve this now, before the holidays have actually arrived.  If you contact my office at 1:00 p.m. on Christmas Eve asking for help, its really too late for me to have a meaningful impact on your situation.

If you and your ex have chronic disagreements about parenting time, often I will take steps to amend the current divorce decree to either clarify the schedule, and sometimes I include language that appoints a Parenting Consultant.  A Parenting Consultant is a neutral professional who has the legal authority to resolve parenting time disputes, award make-up parenting time, and generally be available as a resource.  By Minnesota statute,a Parenting Consultant (also known as a PC in Minnesota) can have either a lot of authority, or not as much authority, depending upon what the court orders.

At Fiskum Law Office, P.A., we can amend your divorce decree after you have already been divorced, so that it addresses parenting time problems and other issues that have arisen after the divorce.  Please feel free to call attorney Daniel Fiskum, Esq., at (952) 270-7700 to schedule a free case analysis.

Fiskum Law Office, P.A., is a full-service divorce and family law firm conveniently located in the Carlson Towers, near the Ridgedale Shopping Center in Minnetonka, Minnesota, at the intersection of Highway 494 and Highway 394.

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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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Minnesota Divorce and Retirement Assets

Often people ask me about how to divide retirement assets when they get divorced.  As I’ve mentioned before, Minnesota is a marital property (or common law) divorce state.  It is not a community property divorce state.  (Most states are community property states.  Minnesota is not.) 

In Minnesota, a division of assets is supposed to be “equitable,” not “equal.”  These two concepts are not the same.  The reason this is important for you to know is that, depending upon the skill of the divorce lawyers, there can be a lot of “slop” when people get divorced.  Sometimes valuation dates get messed up, sometimes values are incorrectly determined, sometimes values change dramatically during the divorce process.  The result can be a property division that is not particularly “equal.”  But, it could be “equitable.” 

In Minnesota, a court can take up to one-half of a spouse’s non-marital property and award it to the other spouse.  Yep, you heard it correctly.  A Minnesota divorce court can take up to one-half of the property you had before you were married and award it to your spouse.  This does not happen very often, but it does happen. 

So, what about retirement assets?  There are several kinds of retirement assets–IRAs, Roth IRAs, 401(k) plans, and pension plans, to name a few.  IRAs and Roth IRAs can be divided by means of a direct rollover.  Essentially, the divorce decree describes the IRA to be divided and states how it is divided–that is, how much each spouse receives.  One spouse or the other takes the decree to the bank and the bank rolls a specific dollar amount into a new account for one of the spouses.  Its a pretty straight forward process.

401(k) plans and pension plans are not as easy to divide.  They require something called a “Qualified Domestic Relations Order” known as a “QDRO” for short.  A QDRO is a court order that conforms to requirements of federal law (mostly ERISA) that directs a plan administrator to take a particular action–in this case, to take some money from a 401(k) plan, for example, and give it to the non-participating spouse.  The end result is the same as with an IRA–the non-participating spouse gets some cash in his or her own account.  But, its a lot more work.  The QDRO has to be correclty worded and it has to meet with the approval of the plan administrator.  The reason for this is that if a distribution is made improperly, the qualified tax status of the entire plan can be jeopardized.  Depending upon the size of the plan and the number of participants, a mistake like this could be catastrophic for the plan administrator.  So, the QDRO has to be correctly written. 

It can be a bit more tricky to divide a pension.  One reason for this is that many pensions have an indeterminate payout.  In other words, you know that when you retire, you’ll get a certain monthly payment.  But, you do not know how much that monthly payment will be until you actually retire.  Its going to depend upon how much money is in the retirement plan and how many retirees are sharing it. 

So, in that case, a QDRO is written that describes a fraction.  Without getting too technical, basically the non-participating spouse receives one-half of the monthly payment that is attributable to the years of marriage.  The participating spouse receives one-half of the monthly payment that is attributable to the years of marriage, plus all of the monthly payment that is attributable to the post-marriage years.  This is expressed by a mathematical equation that takes into account the years of marriage and the total number of years of participation in the plan.

There is also something called a survivor annuity.  You need to research this by getting complete information from the plan administrator.  Many plans have something similar to an “insurance policy” that allows for continued payments to a non-participating spouse when the participating spouse has died.  Often, when one takes advantage of this, the monthly payments upon retirement are somewhat less.  Also, many plans have a provision that when the non-participating spouse dies, the participating spouse’s monthly payment is increased to the amount that it would have been had an award not been made to the former spouse.  Check this out, and when writing the QDRO, do not leave money on the table.

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Moving Children Out of Minnesota

After a divorce is over, one parent may want to move out of the State of Minnesota.  That parent may have physical custody of the parties’ minor children, and will probably want to bring the children along.  Regardless of whether you are the person wanting to move with the children, or the person wanting the children to remain in Minnesota, you need the help of an experienced family law attorney.

One of the most important things a good attorney does is to present a sincere, credible, powerful story to the court.  In the case of a motion to move out of state, the story has to describe the child’s important relationships and contacts within the State of Minnesota (or it has to describe the lack of the same).  The story can be told by the parent, but it can also be told by others–including relatives, neighbors, teachers, and other adults who know about the child’s circumstances.  Sometimes a professional psychologist or social worker needs to be consulted for his or her opinion.

When a party goes to court to request permission to move the children out of Minnesota, typically there is no requirement that the court conduct an evidentiary hearing with in-court testimony by witnesses.  Usually, motions to move out of state are decided on the basis of written affidavits that are submitted by the parties and by their respective witnesses.  Becaues so much is riding on them, a great amount of care needs to go into the drafting of these affidavits.

Minnesota Statute Sec. 518.175, Subd. 3 sets forth the criteria that a court is required to consider when considering a parent’s request to move out of the State of Minnesota with a child.  You can see this statute here: https://www.revisor.mn.gov/statutes/?id=518.175

Of course, this statute simply sets for the legal criteria in dry language.  A good attorney knows how to make an argument that combines the legal criteria with a compelling story in order to create a vivid picture in the judge’s mind. 

If you do not have any parental rights, and the child’s custodial parent says they are going to move, you need to act immediately.  Usually, the person without parental rights is an unwed father, and this is usually because his parental rights were never established by a court order.

Sometimes an unmarried father signs a Recognition of Parentage (called a “ROP”) at the time of a child’s birth.  This ROP is sufficient for establishing the father’s child support obligation.  However, the ROP confers no parental rights on the father.  Under Minnesota law, an unwed mother has sole physical and legal custody of her child who was born out of wedlock.  An unwed father can get physical and legal custody and parenting time, but he needs to bring a formal proceeding in court in order to do so.  An unwed father has no custody, no parenting time, and no other rights–unless and until these rights are established by a court order in a paternity or custody proceeding.

If parental rights have not been established, or if no parenting time has been awarded by a judgment and decree, the parent with custody of the child can move out of Minnesota without the consent of the other parent.

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