Minnesota Divorce and Dividing Property

In Minnesota, divorce courts divide property “equitably.”  This that means property is divided fairly, but not necessarily equally.

For property that has high value – real estate, a business, or other investments – generally an appraiser is hired to determine the property’s value.  Often the appraiser is neutral, meaning that both parties agree to the appraiser and they both agree to accept the appraiser’s determination of property value.

Certain kinds of property, including real estate, are fairly easy to value.  Other kinds of property, a business, for example, can be difficult to value.

A business can be difficult to value because there are a lot of assumptions about the business and the market that the appraiser has to make. When asking the question “What would an arms-length purchaser pay for the business?” there is a lot of estimating about the future prospects of the business that can make it difficult to arrive at a specific value.  Different assumptions produce different results.  While a home can be compared with other similar homes that have sold in the area in the past six months, often, businesses are unique and their success is driven by the individuals who own and manage the business, as well as the nature of the business, the market for the business, etc.

If you are getting divorced and you, or your spouse, owns a business, you need to retain a divorce attorney who has experience with divorces involving businesses.  Feel free to call Minnesota divorce attorney Daniel M. Fiskum and Minnetonka Family Law, P.A., at (952) 270-7700 to set up a free initial consultation.  We are located in Minnetonka, Minnesota, at the intersection of Highway 494 and Highway 394, in the Carlson Towers.

Attorney Daniel M. Fiskum has experience with divorces involving businesses.  He is a graduate of the University of Minnesota School of Law and has been named a Super Lawyer by the Minnesota Journal of Law and Politics.  He is a member of the American Bar Association, Family Law Section, and the Minnesota State Bar Association, Family Law Section.  Daniel M. Fiskum has practiced divorce law in Minnesota for over twenty-five years.

 

 

 

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Minnesota Divorce Judges and Referees

There are two counties in Minnesota in which both judges and referees preside over divorce cases. These are Hennepin County and Ramsey County.  Practically speaking, judges and referees have the same amount of authority.  They both conduct hearings and trials and issue orders.  Orders issued by referees have to be reviewed and approved by a judge.  Most counties do not have referees, and divorce cases are tried by a district court judge.

Sometimes I am asked how much leeway a judge or referee has when deciding a case.  How much can the judicial officer’s personal interpretation of the facts and law impact the case?

There are some issues that are fairly straightforward.  Child support is a good example.  Once parenting time has been determined, the parties’ incomes are entered into the Minnesota child support calculator and once the monthly child support payment has been calculated, there can only be a deviation under certain conditions.  So, I think it is fair to say that most judges who consider the same set of facts for child support will order the same monthly child support payment.  Child support continues until a child has emancipated, which usually means the child has both attained the age of 18 and has graduated from high school.

Spousal maintenance, on the other hand, is very different.  Different judges could award different amounts based on the same set of facts.  This is because there are several factors for a judge to consider, and different judges can assign importance to different factors.  In part, this is why it is important to carefully determine whether a case is a spousal maintenance case, and what factors should be relied upon in either arguing for, or arguing against, an award of spousal maintenance.

With spousal maintenance, the issue is not only the amount of the monthly payment, which can vary considerably from judge to judge, but the duration of the award, that is, for example, should it be for five years, ten years, or permanent.  This is an issue for which you need the help of an experienced divorce attorney, one who is familiar with the bench in a particular county and with prior decisions of the judicial officers.

If you have questions about this or any other legal matter, please call Minnesota divorce attorney Daniel M. Fiskum at (952) 270-7700.  Daniel M. Fiskum and Minnetonka Family Law, P.A., are conveniently located in the Carlson Towers at the intersection of I 494 and I 394 in Minnetonka, Minnesota.  Call now to schedule a free divorce case analysis.

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Minnesota Divorce and Income Taxes

As you know, April 17 is fast approaching and federal and state income tax returns will soon become due.  (Usually the due date is April 15, but it’s been extended by the IRS because the 15th falls on a weekend in 2018.)

Occasionally I get questions about divorce and the filing of income tax returns.  Here is one of them.

Q:  My husband and I are going through a divorce.  Should we file joint income tax returns?

A:  It depends.  As long as you are married on December 31 for the calendar year for which the return is filed, you have the option of filing jointly or individually.  Once you are divorced, you can no longer file jointly.  If you file individually, your tax percentage will be slightly higher.

Whether you file jointly depends on several things.  First, you should have an agreement about how the tax refund checks, or the tax liability, should be divided.  You do not necessarily need to have your attorney prepare a written agreement (though this would be preferable), but you should have an agreement, in writing.

Second, you should be certain that there is no undisclosed income that is not being reported on the tax returns.  This is important for two reasons.  If your spouse has undisclosed income and you sign the tax return, you become liable to the IRS or the MN Department of Revenue for payment of the income tax and penalties on the undisclosed income.  If you do not know about the undisclosed income you might not be criminally liable, but even so you could be held liable for payment of the tax due.  Secondly, if your position is that your spouse earns more income than he discloses, if you sign a joint tax return which reports the lower income, your position become greatly weakened.  It is never worthwhile to under report income simply to get a few more dollars of tax refund.

You have the option of filing jointly or separately.  If you decided to file separately, you should discuss allocation of the income tax dependency exemptions.  Often, a couple will divide the exemptions equally.  (Note: as of 2018, the income tax dependency exemptions for children will disappear.  You can still claim a child tax credit if you file as head of household, and if you meet income requirements, but the income tax dependency exemption for children has been taken away by the tax bill passed by Congress and signed by the President in December, 2017.)  So, for the tax year 2017 the income tax dependency exemptions for children are an issue.

If you have any questions about this or any other divorce issue, feel free to call Minnesota divorce attorney Daniel M. Fiskum at (952) 270-7700 to set up a free, in-person consultation.  (Sorry – but I cannot give legal advice over the phone to people whom I do not know and who are not my clients.  But, I will meet with you for free.)  Attorney Daniel M. Fiskum and Minnetonka Family Law, P.A., are conveniently located in the Carlson Towers at the intersection of Highway 494 and Highway 394 in Minnetonka, Minnesota.  Divorce attorney Daniel M. Fiskum has practiced family law in Minnesota since 1992.  He is a graduate of the University of Minnesota School of Law and has been named a Super Lawyer by the Minnesota Journal of Law and Politics.  He is a member of the American Bar Association and the Minnesota State Bar Association, family law sections.

 

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Divorce and the Early Neutral Evaluation Process

Most counties in Minnesota offer something called Early Neutral Evaluation (also known as “ENE”).  There is an ENE process for custody and parenting time issues, and an ENE process for financial issues.

Early Neutral Evaluation is similar to mediation, but there are major differences.  At an ENE, each party spends a half hour or more talking about the issues from his or her perspective.  If it is a custody and parenting time ENE, the parties talk about the children and the arrangements they believe will be in the children’s best interests.  If its a financial ENE, the parties talk about their finances and how they believe the finances should be addressed.

Then the evaluators take a break, they confer privately, and return in about 15 to 20 minutes.  The evaluators will have specific recommendations.  The recommendations are confidential, meaning they cannot be repeated to the court.  The purpose of the recommendations is to provide the parties with a view of what is likely to happen if the case went to trial.  Often, equipped with that knowledge, the parties can then reach an agreement.

After providing an evaluation, the evaluators then switch to settlement mode to see whether they can help mediate a final agreement.  Sometimes the process is reversed.  Sometimes the evaluators try to reach a settlement first, and then provide their recommendations later.  This depends on the approach of the particular evaluator.

The evaluators are on a list of court neutrals and are appointed by the court. In Hennepin County, the custody and parenting time evaluators work for court services and their offices are on the second floor of the Hennepin County Family Justice Center.

It is extremely important that your attorney prepare you carefully for an ENE.  You need to know not only “what” to say, but “how” to say it so that you do not alienate the evaluators.

If you have questions about this, feel free to call attorney Daniel M. Fiskum, at Minnetonka Family Law.  The number is (952) 270-7700.  Daniel M. Fiskum has practiced divorce and family law for over 25 years.  His office is conveniently located in the Carlson Towers at the intersection of I 494 and I 394.

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Changes to Divorce Law in 2018

In my opinion, one of the most important changes to Minnesota divorce law in 2018 is the federal tax treatment of spousal maintenance. This occurred as part of the sweeping tax reform bill passed by congress and signed by the president in December, 2017.

Keep in mind, the change will not go into effect until January 1, 2019, but this is something that practitioners and clients need to pay careful attention to in 2018.

Beginning in 2019, spousal maintenance will no longer be tax deductible by the payor. And, it will be taxable deductible to the recipient.

In the past, if you were a person paying spousal maintenance, you were entitled to deduct it on your tax return. If you owed $2,000 per month, you could deduct $24,000 per year. Regardless of your tax bracket, this represented substantial savings. As of 2019, if you are paying spousal maintenance, you can no longer deduct it.

The reason you need to know about this before 2018 is that divorce decrees signed before 2019 that award spousal maintenance will be grandfathered in.  For all decrees entered in 2018, the person paying spousal maintenance will still be able to deduct it.  The deduction for the payor disappears in 2019.  So, if you are thinking about getting divorced and you are likely to owe spousal maintenance, you need to think about whether you want the divorce to be finalized prior to 2019.

Daniel M. Fiskum and Minnetonka Family Law, P.A., are conveniently located in the Carlson Towers at the intersection of I 494 and I 394 in Minnetonka, Minnesota. Call (952) 270-7700 now to schedule a free, in-person divorce case analysis.

Divorce and the Holidays

I am sometimes asked if it is better to wait until after the holidays to start a divorce proceeding.  My answer is usually “it depends.”

If the person asking does not have children with his or her spouse, in my opinion starting a divorce proceeding sooner rather than later is probably best.  This is especially true if there are financial issues that need to be addressed immediately.  This is because there is something called the “valuation date.”  This is the date used to divide assets, and used to differentiate marital income from post-marital income.  The valuation date usually happens early in the case, but if you do not start a case, you do not have a valuation date yet.  This means that one spouse can continue to be liable for debts accrued by the other spouse.  In many cases, people who delay the divorce proceeding unwittingly increase the amount of debt they are liable for.

Divorce and separation can be problematic around holiday time if the couple has minor children.  Even so, I think a person needs to ask whether the marriage relationship is so toxic that the children might actually experience relief if a divorce proceeding is started, even when the holidays are coming up.  Children often know when their parents are not getting along and it can impact them negatively if they are are exposed to a less-than-healthy relationship between their parents.  Ultimately, when children are involved, whether one should start a divorce proceeding prior to the holidays is a judgment call to be made by the person contemplating divorce.

If you have any questions about this blog post, or any of my blog posts, feel free to contact me.  My name is Daniel M. Fiskum.  My phone number is (952) 270-7700.  My law firm is Minnetonka Family Law, located in the Carlson Towers, at 601 Carlson Parkway, Minnetonka, Minnesota, 55305.  I have practiced divorce and family law continuously in Minnesota for about twenty-five (25) years.  I am a 1992 graduate of the University of Minnesota School of Law and have been named a “Super Lawyer” but the Minnesota Journal of Law and Politics. I am a member of the Family Law Sections of the American Bar Association and the Minnesota State Bar Association.

 

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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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What is a QDRO?

In Minnesota divorce proceedings, the term “QDRO” is short for “Qualified Domestic Relations Order.”  A Qualified Domestic Relations Order is a court order that divides qualified retirement assets between spouses, as part of the divorce process. Usually, a QDRO is entered as a separate order, after the divorce has been finalized by entry of the divorce Judgment and Decree.  However, QDRO language can be included as part of the divorce Judgment and Decree, though in Minnesota divorce practice this is rarely done.

Qualified retirement assets include 401(k) plans, 403(b) plans, and pensions.  These retirement assets can be divided as part of the property division.  No income taxes or penalties are paid because the division occurs in connection with a divorce.  Property transfers between spouses that occur as part of a divorce proceeding are non-taxable.  However, valuing and dividing retirement assets can be complex, and it is important that the QDRO be prepared by a competent, experienced attorney.

In essence, a QDRO is a court order that instructs the plan administrator to divide a retirement asset between former spouses in a particular way. In the case of a 401(k) plan or a 403(b) plan, the division takes place promptly after the receipt of the QDRO.  In the case of a pension, the monthly payment that commences upon retirement is divided between spouses according to a formula.  The formula factors the number of years of the marriage together with the total number of years of employment.  That way, the non-participating spouse receives only a portion of the marital component of the pension.

Not to get overly technical, but a “qualified” retirement asset is, by definition, one that is described in Section 401(a) of the Internal Revenue Code.  It is a company retirement plan that is established for the benefit of company employees, and typically the employer makes a contribution to the plan.  IRAs and Roth IRAs are individual retirement accounts, not qualified retirement assets, and they are not divided with a QDRO.

If you have any questions about QDROs, you should feel free to call attorney Daniel Fiskum at Minnetonka Family Law, P.A.  The telephone number is (952) 270-7700.  Minnetonka Family Law is conveniently located in the Carlson Towers, located at the intersection of Highway 494 and Highway 394 in Minnetonka, Minnesota.  Call now to schedule a meeting for a free divorce case analysis.

 

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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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MN Divorce and Taxes

With tax time coming, I am asked a lot of questions about divorce and taxes. Here are some things to keep in mind:

1. Transfers between spouses pursuant to a divorce decree are nontaxable.

2. Even if you are divorced, you can file a joint income tax return for the prior year if you were married when the year ended (December 31).

3. If you are divorced and choose to file a joint tax return for the prior year, it is best if you have a written agreement, signed by both parties, stating how the tax refund or tax debt will be divided.

4. A spouse who has received a portion of the other spouse’s retirement plan (a 401k plan, for example) can cash in his or her portion of the plan and does not have to pay the 10% penalty. This can only be done by the non-participating spouse. That spouse will still have to pay federal and state income taxes at whatever his or her tax bracket is, and the receipt of the funds might increase that bracket. If that spouse wishes to roll over the funds into his or her own retirement account (an IRA, for example) in order to avoid any penalty and taxes it needs to be rolled over within sixty days of the receipt of the check.

5. If you sign a joint return with your spouse (or former spouse, if you are filing for the prior year and were married on December 31) will will be jointly and severally liable for the payment of any tax due. And, if the return is amended and a higher amount is due, you will be liable for the higher amount, even if you do not sign the amended return.

If you have questions about this, feel free to call Minnetonka Family Law, LLC and attorney Daniel Fiskum. Our offices are conveniently located in the Carlson Towers, at the intersection of Highway 494 and Highway 394, in Minnetonka, Minnesota.

Call Daniel now at (952) 270-7700 to schedule a free case analysis.

Divorce Minnesota Style

There are some things about divorcing in Minnesota that are very predictable. There are some things about divorcing in Minnesota that are very unpredictable.

Child Custody and Parenting Time: More often than not, the custody and parenting time arrangement resembles the parenting contributions of each party prior to the divorce. If one parent was clearly the primary parent prior to the divorce, that parent often is the primary parent after the divorce. However, there are ways of changing this during the divorce process.

Child Support: the amount that a parent pays for child support is fairly predictable. It is a result of a computer calculation that takes into account both parent’s incomes, the number of children, each parent’s percentage of parenting time, and whether a parent has children from a prior marriage or relationship. Once these factors are know, the dollar amount of child support is very predictable.

Spousal Maintenance: In Minnesota, spousal maintenance is all over the map. By this I mean that the appellate courts give the trial judges wide latitude in establishing spousal maintenance. Different judges have different opinions. A judge with white hair who went to law school in 1975 is going to have a different attitude about spousal maintenance than a younger judge who went to law school in 2003.

Daniel Fiskum is a Minnetonka family law attorney with over 20 years experience. Call now for a free divorce case analysis. (952) 270-7700. Minnetonka Family Law, LLC.

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In Divorce, You Don’t Know What You Don’t Know

A lot of times people call Fiskum Law, P.A., to ask whether they “need” a lawyer for their divorce proceeding.  My answer is usually “yes, you probably need a lawyer.”  That’s different than saying that you can afford to hire a lawyer.  I am not your banker and I do not know the answer to this question.  Only you can make this call.

I am attorney Dan Fiskum.  When you get divorced, I am concerned about creating a bright future for you, and not just resolving your past problems with your spouse.

Here are some times when you really do need me:

1.  Your spouse has hired a lawyer.  If your spouse has hired a lawyer, you need one too.  Your spouse’s lawyer will NOT work for you.  In fact, in order to prove to your spouse how important it was to hire a lawyer, that lawyer is probably going to take advantage of your ignorance of the law.  I do not let opposing attorneys take advantage of my clients.

2.  You have a contested custody case.  A contested custody case is mostly about perceptions.  Think about it.  Does the judge really get to know you?  Does the judge go out to McDonald’s with you and the kids in order to see first hand just what a wonderful parent you are?  No.  At a temporary relief hearing you will spend 10 minutes standing in front of the judge, who may or may not have read the paperwork first.  What you say, how you comport yourself, and what you do not say, is all very important.  If you have never done this before, you need my help.

3.  You have a case that involves payment of spousal maintenance.  If spousal maintenance is at issue, you need a lawyer.  Many people make the mistake of thinking of spousal maintenance in terms of the amount of the monthly payment.  People make this same mistake when shopping for an automobile.  Instead, do the math.  For example, a spousal maintenance payment of $2,000 per month equals an obligation of $24,000 per year.  Multiply that amount by ten years of payments, and you are looking at a total payment of $240,000, which is almost a quarter of a million dollars.  If you were involved in a lawsuit that was worth a quarter of a million dollars, wouldn’t you hire a lawyer?

4.  Your spouse has accused you of domestic abuse.  This is a big one.  Do not try to handle this on your own, because you will most likely botch it.  If a court finds that you have committed domestic abuse, in today’s political climate this could interfere with your job, your future job, your future relationships, your right to own firearms for hunting, and all sorts of things.  (Yes – you heard me right.  If you are a sport hunter and a court finds you have committed domestic abuse, you cannot own firearms and you will not hunt again for a long, long time, if ever.)

5.  Your spouse wants you to assume all of the debt.  There many pitfalls when dealing with marital debt.  A lot of self-represented people agree to assume marital debt, believing that they will discharge this later in bankruptcy.  Of course, if they had competent attorneys, they would have been told that the law does not allow this, and that if they agreed to pay marital debt, or were ordered to pay it, it is NOT dischargable in bankruptcy and that debt is going to stay with them.  Think about it.  After your divorce, you have remarried and your new spouse wants to take a winter vacation to Mexico.  You say “Sorry honey.  I’ll be paying my ex-spouse’s bills for the next 20 years.  Let’s schedule our first vacation for sometime in the year 2034.

There are many other reasons to hire a skilled and experienced attorney.  I have been practicing divorce and family law in Minnesota since I graduated from the University of Minnesota School of Law in 1992.  I have been named a “Super Lawyer.”  I am a member of the American Bar Association and the Minnesota State Bar Association.  I enjoy helping people and I will help you.  Call me now at (952) 270-7700.

Fiskum Law Office, P.A., and Minnetonka Family Law, P.A., is located near the Ridgedale Shopping Center in the Carlson Office Towers, at the intersection of I 494 and I 394, in Minnetonka, Minnesota.

 

 

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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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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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 Divorce and Income Tax Returns

When you are getting divorced, it is important to pay attention to income tax returns.  Often, it makes sense financially for a divorcing couple to file a joint income tax return for the preceding year.  Before you sign a joint return, you need to verify that your spouse has accurately reported his or her income.  If you sign a joint return and the IRS determines that because of something your spouse did, your tax should have been higher, you could be liable for payment of the additional tax.

You also need to pay attention to which spouse gets to claim the income tax dependency exemption for any minor children.  The default position of the Internal Revenue Service is that the parent who has the children in his or her care the majority of the time (i.e., 6 months plus one day) is the person who is entitled to claim the exemptions.

However, in Minnesota, divorce courts can modify this, and they can award the income tax dependency exemptions to one parent or the other, depending upon the facts of the case.  Generally, the exemptions are allocated equally. If there is only one child, then the right to claim the exemption is alternated between the parents on an annual basis.

If you have questions about this or any other divorce issue, call Minnetonka, MN, divorce attorney Daniel Fiskum at (952) 270-7700 to schedule a free divorce case analysis.

10 Things Divorcing Fathers Need to Know

If you are a father who is seeking custody of your children, or equal parenting time, etc., you need to know the following ten things:

1. The names of your children’s school teachers;
2. The names of your children’s doctors;
3. The names of your children’s best friends;
4. The names of your children’s pets;
5. Your children’s favorite TV shows;
6. Your children’s clothes and shoe sizes;
7. Your children’s favorite toys;
8. Your children’s favorite, healthy foods;
9. Your children’s on-line, Internet activity;
10. Effective methods of discipline that do not involve physical punishment.

A lot of divorcing fathers do not pay attention to this information. Then, when it comes time to attended a Social Early Neutral Evaluation meeting, or mediation, or a deposition, when asked these questions they look like they are out of touch with the real needs and situation of their children. This will sink their claim for joint physical custody and equal parenting time faster than a torpedo.

If you have questions about this, call Minnetonka Divorce Attorney Daniel Fiskum at (952) 270-7700. Like any responsible attorney, I cannot give legal advice over the telephone to someone I do not know. But, I offer a free initial divorce case analysis and I encourage you to take advantage of this.

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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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Divorce and Joint Tax Returns

Around this time of year we at Fiskum Law are often asked about whether a divorcing spouse should file a joint tax return with the other spouse.  Our answer is “it depends.”

When you sign a joint tax return with a spouse, you become jointly and severally liable for the tax debt owed.  This means that if there is money that is owed and your spouse does not pay it, the IRS will make you pay it.

What if your spouse misrepresents his or her income?  What if he or she failed to report some income, and when the income is reported later, it results in a significant tax debt?

If that happens, the IRS can make you pay the debt.  If you sign a joint tax return for 2012, you become responsible for any and all taxes and penalties owed in connection with any amended 2012 tax returns.

Can the divorce court enter an order directing your spouse to pay the debt?  Yes, it can, but if your spouse doesn’t have any money and you do, the IRS will take it from you.

So, you need to be careful before you sign a joint return.  There are benefits, including a lower tax rate, but you need to make sure that there has been full and honest disclosure of all income and debts so that you know what you are committing to.  I have developed language that I use in proposed Judgment and Decrees that, to the greatest extent possible, protects a spouse in this circumstance.

Feel free to call me, attorney Dan Fiskum, at (952) 270-7700 to schedule an in-person divorce case analysis.  My office is conveniently located in the Carlson Towers at the intersection of Highway 494 and Highway 394 in Minnetonka, Minnesota.

Holiday Parenting Time in Minnesota

I am frequently asked questions about holiday parenting time and how that is allocated between divorced parents. Sometimes this can be a contentious issue, especially if one parent wants to bring the children to a family gathering that is out of state.

Generally speaking, Minnesota courts try to allocate holiday parenting time fairly, keeping in mind the needs of the children, and, to a much lesser degree, the wishes of the divorced or separated parents. I think its fair to say that most judges will try to divide up holidays evenly. Christmas Eve and Christmas Day are typically considered to be two separate holidays. One parent might be awarded Christmas Eve, including the overnight, and the other parent would then be awarded Christmas Day, from 9:00 a.m. until the following day. It would be unusual for a judge to grant one parent both days, even if a parent wanted to leave the State of Minnesota for a visit with relatives.

Other holidays are treated somewhat differently. They are usually alternated on a yearly basis. The main holidays are New Year’s Eve and Day, Easter, Memorial Day Weekend, Fourth of July, Labor Day Weekend, Thanksgiving, Christmas Eve and Christmas Day. These generally are alternated between the divorced parents on a yearly basis. Minnesota has an “extra” holiday, namely the MEA break that occurs in October, and this is sometimes included. Also, Father’s Day is always awarded to the father, and Mother’s Day is always awarded to the Mother.

If you are a divorcing or divorced parent and you expect parenting time problems with the upcoming Christmas holidays, you need to take steps to resolve these now. Courts typically don’t have the availability the day before a holiday to resolve disagreements.

I am a Minnesota divorce attorney with an office located in the Carlson Towers in Minnetonka, Minnesota, at the intersection of Highway 494 and Highway 394. If you have any questions about this or any other divorce topic, you should feel free to call me at (952) 270-7700 for a free consultation.

Dan Fiskum
(952) 270-7700

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Divorce and Business Valuation

When a person owns a business, divorce can pose special problems.  There is no “one-size-fits-all” solution, and a business owner who is going through a divorce (or a spouse of a business owner) needs competent and experienced legal representation to address valuation and tax issues.

Usually  in the context of a divorce, it is necessary to establish a value for the business in order to fairly include it in the property division spreadsheet.  And, usually a business appraisal is performed by a professional appraiser.  The appraiser seeks to answer the question – what would the average buyer pay to acquire the income stream.  There are various formulas that an appraiser might use, and the capitalization rate that he or she selects can vary from business to business.  Counterintuitively, the appraiser does not ask what an actual buyer might pay,  but, in light of the formula, what would an average buyer pay.

When valuing a business from the perspective of the outside spouse (the “outside spouse” is the person who does not run the business, and to whom the business itself is probably not going to be awarded) it is important to look at the spending patterns the business has engaged in in in the past.  Is the business paying the personal expenses of the owner?  For, example, is the business providing the owner with an automobile, is it paying his or her automobile insurance, and is it paying other expenses which could be considered personal to the owner?  Who owns the property that the business is situated on?  Is the business paying the owner rent?  Or, if the business is an office building or an apartment building, is it fully leased?  What are the durations of the various leases?

This information is probably not found in the business’s tax return.  An expert may have to review the business’s accounting ledgers, including sub-ledgers that provide details on individual expenditures.  There are many other kinds of documents that provide valuable insight into the inner-workings of a business entity, and you should select an attorney who knows what these are and who knows how to get access to them.

Sometimes a business owner has an ownership interest in a business in the form of stock shares or partnership shares.  While these have value, typically there are share transfer restrictions placed upon them when the business was formed.  A share transfer restriction places a restriction on who may own stock in the company.  Usually, when a share transfer restriction is in place, the only person who can buy stock is another shareholder, or someone else who is approved by the directors and/or shareholders.  A share transfer restriction can reduce the value of the stock because the stock is not freely transferrable.  Shares of stock that are publicly traded on a stock exchange do not have share transfer restrictions, and anyone can buy them.

Sometimes shares of stock are held in an Employee Stock Ownership Plan.  These, too, can be the subject of share transfer restrictions.

It is also important to obtain information about the equipment and fixtures owned by a business.  And, if the business owns intellectual property (trademarks, copyrights, patents, secret recipes, etc.) these also need to be valued.

If you are going to be involved in a divorce proceeding in which the disposition of a business is an issue, you should call attorney Dan Fiskum at (952) 270-7700 for more information and a free divorce case analysis.

 

MN Family Law in 2012

I believe that in 2012, Minnesota Family Law will continue on a trend towards private resolution of divorce cases.  In large part, this is dictated by the current legislative attitude towards raising revenue and funding services, specifically funding the Minnesota district court system.  A few years ago, the Chief Justice of the Minnesota Supreme Court gave a candid and forthright interview in which he described the financial crisis that the Minnesota courts were in at that time.  Well folks, it hasn’t gotten any better.

So, what does private divorce case resolution look like?  Well, first, you have to pay for it.  Whether you hire a private mediator, a financial or custody Early Neutral Evaluator, a private arbitrator, or a consensual special magistrate, you – the person getting divorced – have to pay for it.

Mediation is a process where the parties and attorneys meet with a mediator in an effort to negotiate a resolution to their disputes.  While mediation is often required by the court, you cannot be “forced” to settle a case on terms you do not like.  In other words, while participation in mediation is often mandatory, settling a case in mediation is voluntary.  If you do not like the final offer of the other side, you can walk away from mediation and go to trial.  Mediation is confidential, and if you do not settle the case, the divorce judge is not allowed to know what it is that you talked about.

The Early Neutral Evaluation (ENE) process is similar to mediation.  Many counties offer Early Neutral Evaluation for both custody and financial issues.  The primary difference between mediation and ENE is that in the course of the ENE process, the evaluator will give the court an opinion about how a judge would decide the case, if the case went to trial.  The purpose of this is to give both parties an unbiased insight into their facts and legal issues, in an effort to prevent continued litigation.  Counties in the metropolitan Twin Cities area offer an ENE process.  These include Hennepin, Ramsey, Anoka, Wright, Sherburne, Washington, and some others.  I have some problems with the ENE process.  Often, the persons giving the evaluation are not licensed attorneys.  It is illegal for a non-licensed attorney to apply a legal analysis to a fact situation.  That is called “practicing law without a license.”  But, the courts do not seem to mind.

An arbitrator or consensual special magistrate functions like a privately-paid judge.  Unlike mediation, you cannot be required to participate in arbitration.  It is voluntary.  An arbitrator is an attorney, not a judge.  If you hire an arbitrator, he or she will conduct a trial and decide the disputed issues, just like a judge does.  The benefit is that you can usually resolve a case through arbitration much more quickly than you can if your case goes to trial before a judge.

Hennepin County offers something called a mediated settlement conference.  As far as I know, Hennepin County is the only Minnesota county that authorizes this in divorce cases.  Participation is voluntary.  Essentially, the parties meet at the courthouse for a settlement conference.  The settlement conference is mediated by a private mediator.  The judge presiding over the case is also available to give an opinion on disputed issues.  This is sort of like getting the judge’s opinion, without actually going to trial.

Many judges will informally offer an opinion on disputed issues, directly or indirectly, whether the parties or attorneys ask for it.  Technically, judges are not supposed to do this and are supposed to remain “ignorant” of the facts until the trial begins.  But, in the context of a mediated settlement conference, the judge is free to give his or her opinion.

I believe that there is a problem with arbitration, consensual special magistrates, and mediated settlement conferences.  The problem is that in the Twin Cities, the system is too inbred.  Historically, there has been an imaginary wall between judges and lawyers.  This is as it should be.  It is not good for judges and lawyers to be too familiar with each other because subtle and unconscious biases and find their way into the judicial decision making process.

However, lawyers do hang out with other lawyers.  Lawyers refer cases to each other, they work on committees together, they form friendships and get together for drinks after work.  If you are a lawyer in a small shop, it is a bad thing when the lawyer you hire to decide your case has a continued financial interest in selling his services as mediator, in the future, to the larger firm you are up against.  That pecuniary interest will color his or her decision making process.  Psychologists have studied unconscious biases similar to this extensively.  It is a legitimate concern.

Lawyers and judges should be concerned both with actual, real bias, and also with the appearance of bias.  In order for our legal system to work effectively, people have to believe in it.  If they begin to lose their belief that our legal system operates in a manner that is unbiased, our legal system will begin to lose credibility.

I am aware of a circumstance in a metro-area county in which a law firm first acted as an early neutral evaluator on a case.  Then, later on a post-decree matter, the same law firm became involved as attorney for one of the parties.

I am aware of a case in which an early neutral evaluator worked on a case as a neutral, when one of the attorneys was also the evaluator’s attorney in his own divorce case.

In my view, the answer to this problem is twofold.  First, I believe the legislature needs to provide sufficient and adequate funding for the Minnesota district court system.  Presently, it does not.

Secondly, I believe that the court rules need to be modified so that there is more regulation of people who serve as arbitrators, consensual special magistrates and early neutral evaluators.  If a person is going to “act” like a judge, he or she needs to be held to the same ethical standard as a judge.  There are clear rules that govern judges and referees.  There are clear rules that govern lawyers.  There needs to be a set of rules that govern mediators, arbitrators, early neutral evaluators, and consensual special magistrates.  Persons in this class should be required to make full disclosure of their relationships with both law firms involved in the case.  This includes pending cases in which they are serving as attorneys for one party, and pending cases in which they are being paid by the law firm to work as mediator or arbitrator.

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.

Divorce and Drug Addiction

Occasionally someone contacts me about divorcing a spouse who is abusing alcohol or drugs.  They would like to keep the proceeding “amicable,” but at the same time they are concerned that their spouse might receive inappropriate parenting time, meaning that their child might be left alone with a drug-using or actively-alcoholic spouse.  They are concerned that if they make an “issue” of the spouse’s drug or alcohol use, that will make the spouse less likely to cooperate during the divorce process.

In my 20 years of experience as a divorce lawyer, I have learned that there is usually just one way to deal with a spouse who uses drugs, and that is to make an issue of it from the very beginning.  There are several reasons for this.

First, its pretty much impossible to negotiate fairly and reasonably with an active drug user or alcoholic.  Addicted persons can be manipulative and disingenuous.  You might engage in wishful thinking, hoping that “just once” the addicted person can have a moment of clarity and agree that, for example, you should get sole custody of the children and that he or she should get supervised parenting time until they have been through treatment and sobered up.  But when it comes to divorce and protecting your children, wishful thinking is not the best approach.  It probably has not worked for you before because if it had you would not be getting divorced.  There is no reason that it will start working now.   Its nothing more than your own form of denial.

But there is another reason to make a spouse’s drug use an issue from the start – your credibility.  Its important and its the only thing you can rely on to get you through a difficult divorce proceeding.

Here’s what I mean: If you don’t mention the spouse’s drug use, if you just present pleadings to the court that say that there has been an irretrievable breakdown of the marriage, that you want to get divorced, and that you want sole custody of the children, the court will not understand the underlying problem.  Then, if your spouse can “clean up” for a while, he or she will file responsive pleadings stating that he or she wants joint custody, unsupervised parenting time, etc.

If you wait until then to mention the spouse’s drug use, the court might think you are making it up.  After all, if it was an important issue, you would have said something about it with your first pleadings.  You lose credibility.

And, people who abuse drugs and alcohol are experts at denial.  They can look very believable and a judge, who may spend all of 10 minutes interacting with you and your spouse early in the proceeding, might be fooled.  By not mentioning the drug use problem you make it easier for your spouse to fool the judge.  Lying and denial come very easy to addicts.  Many of them do not even know they are doing it because it has become second nature.

Your best defense against this is your own credibility.  You keep this by being completely truthful and honest about the situation from the very beginning, and by not wavering in your expression of concern about the welfare of your children when they are in the care of a spouse who is a drug addict or an alcoholic.

I understand that this is not easy.  Divorce is a difficult and painful process.  Many people experience anxiety and fear when faced with a decision about getting divorced.  I cannot help with all of these issues, but I can help with the process of getting divorced and dealing with a spouse who abuses drugs or alcohol.

 

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 Retirement Assets

Recently I was asked whether re-marriage can affect a person’s entitlement to receive retirement assets that were divided pursuant to a Qualified Domestic Relations Order as part of a divorce decree.  The answer is “No.”

Here’s the background: in Minnesota, assets acquired during a marriage generally are considered “marital” property.  Exceptions include inheritances, gifts made individually to one spouse and not to the other, and some components of personal injury settlements.  There are a few other exeptions.

In Minnesota, marital assets, including retirement assets are subject to an equitable division.  This includes retirement assets, including pension plans, 401(k) plans, IRAs, Roth IRAs, and other types of assets.

Generally speaking, IRAs and Roth IRAs can be divided rather simply, with a roll-over from one account to another account (in the name of the spouse receiving the asset).  Because of the way the internal revenue code is structured, pension plans and 401(k) plans require a more detailed treatment.  I believe this is because pension plans and 401(k) plans involve pooled assets.

To divide a 401(k) plan or a pension plan, the court needs to enter something that in Minnesota is called a “Qualified Domestic Relations Order.”  To put it simply, this is an order from the court to the plan administrator, telling the plan administrator to take a particular action, that is, to transfer all or part of an asset from one spouse’s name into the other spouse’s name.  (Keep in mind that this is an oversimplification, its a little more complex than this in real life.)

In Minnesota, the abbreviation for Qualified Domestic Relations Order is “QDRO.”  Once a QDRO has been entered by the court, it is served on the plan administrator.  The plan administrator then follows the directive of the recipient in either establishing a new account or transferring the assets.

Once the QDRO is approved by the court, it is final.  If a spouse receiving an interest in a pension plan or 401(k) remarries, he or she does not lose the benefit of the retirement asset that was transferred to him or her by a QDRO.  The property division became final at the time of the divorce.

 

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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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Minnesota Government Shutdown

Like most Minnesotans, whether Republican or Democrat, I do not like to see our state government shut down.  I hope our elected representatives do what needs to be done to get our state open for business again.

The Minnesota court system will remain open for now.  It is possible that some services might be curtailed, but not during the month of July.

I believe that in the future, the courts will either provide fewer services to people who are getting divorced, or they will charge more for the service.  Presently, many courts have an “in-house” service that helps people resolve custody and parenting time disputes.  In some counties, this is called the “Custody Early Neutral Evaluation” program.  In other counties, it is called the “Social Early Neutral Evaluation” program.  Generally speaking, I think it is a good thing and most of the time my cases that go through the CENE or SENE program are settled.

Currently, many counties offer the CENE or SENE program at a very reduced rate to people who have financial limitations.  And, they offer it at a very reasonable rate to everyone else.  It’s possible that this could be one of the casualties of the financial straits our government is in.  I don’t think the CENE program will go away because its too important to the system.  But, I do think it will begin to cost more.

What a lot of people forget is that when taxes are kept low, fees for governmental services go up.  Right now, in most counties, the filing fee for a divorce case is $400.  (In Hennepin its $402.)  I expect that fee to increase.  The fee for sending a fax to the court is $25.  The fee for filing a formal motion is $100.  The person who is getting divorced pays these fees.

Feel free to call me at (952) 270-7700 if you have any questions or concerns about Minneosta divorce law and the Minnesota state government shutdown.

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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Minnetonka Divorce Guru

Generally, I am in favor of settling cases amicably, when ever that is possible.  There is a saying among lawyers and judges that a bad settlement is often better than a good decision from the court.  In part, this is because it is impossible for the court, after a contested trial, to draft an order that is comprehensive enough to apply to the minutiae of every day life.

For example – when parents divorce, the court will enter an order which grants custody and parenting time.  Often, the courts will be somewhat specific, for example, indicating that parenting time is every other weekend from Friday after school through Sunday at 6:00 p.m.  Additionally, the courts will typically grant parenting time on alternating holidays, during school breaks, and during the summer.

The problem is that in real life, it is often difficult to adhere strictly to a parenting time schedule.  Parent’s schedules can change.  Children’s schedules can change.  Unexpected events happen.  My experience is that it is almost impossible to draft a comprehensive order that takes into account all possible contingencies.  Necessarily parents have to cooperate.  I think this post-divorce cooperation can be enhanced if the parents can cooperate at the time of the divorce.  I think that if parents bring issues like custody and parenting time to trial, their ability to cooperate post-divorce is diminished.

Now, there are valid reasons why some parties cannot cooperate.  There are valid reasons why some cases need to be brought to trial.   But, with effective representation, I think that most Minnesota divorce cases can and should be settled.  Many Minnesota counties are using the Early Neutral Evaluation process to resolve cases, and while I have some problems with the way it works, generally speaking I think it is a good thing.  (My biggest problem with the ENE process is that if there is no settlement, the evaluators are expected to give an opinion about the likely outcome if the case goes to trial.  In my view, this is practicing law – it is applying a legal analysis to a fact situation and giving counsel based on the legal analysis.  The problem is that in order to practice law in Minnesota, one needs an attorney’s license.  Not all of the evaluators are attorneys.)

More about this in subsequent posts.

Superbowl and Divorce

Well, the 2011 Superbowl, the annual football game of the century, has finally come and gone and Green Bay is victorious.  Unfortunately, the Minnesota Vikings were again unavailable to play in the Superbowl this year, but since I have lots of friends in Wisconsin I’m glad they got to win it.

So what does the Superbowl have to do with divorce?  Well, I have been practicing divorce law in Minnesota since 1992.  My experience is that the number of divorce filings increases significantly after the Superbowl.  I am not sure why that is.  I think its possible that people who are thinking about getting divorced in the fall tend to put it off until after the holidays.  The holidays come and go, and they wait a few weeks, the Superbowl is played, and people start thinking about the spring and doing things that they had put off until after the holidays.

If you are now thinking about getting divorced, give me a call for a free divorce case analysis.  Call me at (952) 270-7700.

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 in 2011

My recent blog post on the future of divorce in Minnesota has received a lot of attention.  I am hopeful that the folks at the Minnesota state legislature understand the severe economic pressure that the Minnesota court system is under.  While I like to remain apolitical in this blog, it is nonetheless true that the divorce court system provides a significant and important service to the citizens of Minnesota.  Regardless of how prolonged and contested divorce proceeding can become, it is better than self-help.  It is important that the Minnesota legislature provide adequate funding for the Minnesota judicial branch.

Having said that, there are ways that people can reduce the costs they incur in connection with their divorce proceeding.  First, the parties should take a personal “inventory,” and ask whether they want to spend the next year or so of their life fighting about their personal issues in public, in divorce court. If the answer to that question is “No,” then the parties  should identify the kinds of issues that they may be able to reach a compromise on.  Then, they should try to reach a compromise.  A compromise on some of the issues is better than no compromise at all.

Sometimes parties cannot reach a fair compromise because one of the parties has a personality disorder.  Narcissistic Personality Disorder and Borderline Personality Disorder are examples of personality disorders that are very difficult for the other spouse to deal with in the context of a divorce proceeding.  I also understand that some issues may not be amenable to compromise, even if both parties are comporting themselves rationally.  That’s why they have judges.  But, if parties can limit the range of issues that a judge has to decide, that streamlines the process and results in cost savings.

It is important that parties retain certain basic financial records that can help in dividing assets.  These records include recent state and federal income tax returns, recent paycheck stubs, year-end account statements for retirement accounts and investment accounts, and records relating to the purchase of a homestead or other significant item of real estate or personal property.  If these kinds of records can be exchanged at the time that the proceeding is started, this will result in a significant cost savings.

When I meet with a client for a free divorce case analysis, I provide the client with a comprehensive list of documents that I may need to review if I agree to represent the client.  I suspect that other attorneys do the same, so when you have an initial case analysis meeting with an attorney, be sure to ask him or her for a copy of the list.

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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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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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Minnesota Divorce in 2011

As followers of this blog know, I believe that the biggest challenge currently facing the family court system in Minnesota is lack of adequate funding.  I think it is important that everyone communicate to their legislators how important it is that Minnesota courts be adequately funded.  Lack of adequate funding results not only in fewer judges, but fewer law clerks, court reporters, administrative clerks, and other professionals who are needed to get work done.

In many Minnesota counties, it can take several months before a hearing for temporary relief can occur in family court.  The rules of civil procedure only require 14 days advance notice.  But, in many cases the actual hearing is scheduled months out into the future.

Historically, the court used to provide much needed services to divorcing families for free.  These services included custody and parenting time studies and some limited mediation services.  The costs for these services have shifted from the court to the persons who are getting divorced.  They can be expensive.  For example, it can cost $10,000 to $12,000 to hire a licensed psychologist to conduct a private custody evaluation.  When people cannot afford these costs, they tend to be shut out of the process.

I give free initial consultations.  Feel free to call me at (952) 270-7700 if you are planning to get divorced and have questions or concerns.

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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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The Future of Family Law in Minnesota?

The fact is that I do not know what is going to happen in the future, anymore than anyone else does. But, I think it is possible to make some prognostications based upon what is happening now.

In my opinion, the Minnesota district court system, including the family court, is facing a crisis of funding.  There are not enough tax dollars to fund all of the programs that a healthy family court system requires in order to effectively meet the needs of the record numbers of people who are getting divorced. The result is a family court system that is only partially effective in resolving problem divorces.

Often, people who are getting divorced are at their emotional and financial worst.  They can engage in arguing and bickering and worse.  They can appear unreasonable and mean spirited.  But, regardless of how a party comports himself or herself, he or she is entitled to legal representation and legal services that fairly and promptly resolve disputes.

If the resolution of an issue is not prompt, it is not fair.

Let me repeat that: if the resolution of an issue is not prompt, it is not fair.

Because of the lack of funding, there can be tremendous delays in getting a matter heard and decided by a judicial officer.  One parent can be unfairly denied parenting time by the other parent, and during the months it can take to get the matter before a judicial officer, incalculable and unrepairable damage can be done to the child and parent relationship.  And there can be tremendous delays in establishing child support and spousal maintenance which can lead to hardship and even the loss of a home.

I believe that in the future, we will see more and more “private” judges–that is, Consensual Special Magistrates who are hired by the parties to act as an arbitrator.  In my opinion, this is not a particularly good idea for two reasons: 1. the parties usually have to pay a significant amount for this.  2.  Consensual Special Magistrates usually wear two hats.  Sometimes they work as magistrates and sometimes they work as attorneys.  They can have great familiarity with one attorney on a case, but not with the other.  They can tend to favor attorneys from big law firms, because they know that if they do, they are more likely to get repeat business.

I am aware of two prominent family law judicial officers who are leaving the bench soon in order to open up their own private mediation firm.  My guess is that they will also serve as Consensual Special Magistrates.  They have access to hard to get information about case levels, funding, staffing and other issues that are important to running a healthy family court.  My guess is that, while I cannot predict the future, they probably can.  And in that future, privately paid-for justice will figure prominently in the future of family court in Minnesota.

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Minnesota Divorce and School Selection

Once in a while I am asked about what happens when two divorced parents (or two parents who are in the divorce process) cannot agree on which school their children should attend.  In Minnesota, the right to select a child’s school is one of the rights that is included in the “bundle” of rights called “legal custody.”  In other words, the parent, or parents, who have legal custody or joint legal custody get to make  the decision.

In Minnesota divorce proceedings, there is a presumption that legal custody will be joint – that is, shared by both parents.  This means that both parents will have a say in which school a child goes to after the divorce, just as they did before the divorce.

While there is a presumption in favor of joint legal custody, this can be overcome if one parent can show that domestic abuse has occurred, or if one parent can show that joint legal custody is not in the best interests of the children.  However, most of the time, legal custody is awarded jointly to both parents.

So, what happens when the parents disagree about schooling?  Often times the court will make the decision.  My opinion is that the court should not pick a school, but should instead make a decision about whether one parent only should have sole legal custody (with no need to obtain the other parent’s consent).  But, as often as not, these days a judge or referee might hear the evidence and make an order about schooling, without necessarily modifying joint legal custody.

In either case, there are specific factors that most courts will look for when deciding this issue. If you and your ex-spouse are having difficulty with this issue, feel free to call me at (952) 270-7700 for a free consultation on yours and your children’s rights and the best way to assert those rights.

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MN Divorce Lawyers – How to Pick One

Once in a while people ask me how to pick a good divorce attorney.

Generally, an attorney with more experience charges more than an attorney with less experience.  That does not mean that you are necessarily going to get a better deal with a less experienced attorney, nor does it mean you are going to be more successful with an expensive attorney.  It all depends upon your needs and your bank balance.

If you and your spouse have already reached an agreement, you should have an attorney (who represents you and not your spouse) review it and put it in proper form for the court to act on it.  Generally, the attorney will take your agreement and from it, prepare a Marital Termination Agreement and something called “Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree.”  You do not need to spend a lot of money on that kind of project, its not controversial, and any divorce attorney should be able to do it for you.

If you and your spouse do not have an agreement, and you expect that there will be a fight about child custody, parenting time, or spousal maintenance, you might want to consider looking for an attorney with a significant amount of experience in those areas of practice.

You should meet with two or three attorneys before making a decision.  Ask them how they bill out their time.  An attorney who bills in quarter hour increments is probably going to cost you more than an attorney who bills in tenth of an hour increments.  With the quarter hour attorney–he or she is going to bill you for 15 minutes of time for a 5 minute telephone call.  Do the math – if an attorney charges $250 per hour, a 5 minute phone call will cost you about $62.50.  That’s a lot of money.  Is it worth it?  Maybe.  Maybe not.

You should ask the attorneys you meet with where they went to law school.   That can sometimes you something about their overall intellectual acuity.

You should ask them whether they belong to, or participate in, professional groups like the Minnesota State Bar Association Family Law Section, or the America Bar Association.

You can go online to the Minnesota Lawyer’s Professional Responsibility Board and see whether the attorney you are interviewing has ever been sanctioned by the Board.  That’s something that you should know.

It is problematic getting referrals from attorneys.  I do not give referrals because I consider each of my client’s cases to be strictly confidential.  Though most divorce court files are public and you can look at anybody’s divorce court file just by going to the courthouse an asking for it, I, nonetheless, keep all client information strictly confidential and for that reason I do not give out referrals.  Doctors do not give out referrals and attorneys should not do so, either.

You should ask an attorney what he or she thinks of your case, and how he or she would present it to the court if there is a hearing for temporary relief, or if there is a trial.  Different attorneys work differently, and he or she should be able to give you an idea of the particular approach he or she would take.

If you have done all of that, then make a decision based on your best judgment.

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Can I Represent Myself in a MN Divorce Proceeding?

People sometimes ask me whether they can represent themselves in a Minnesota divorce proceeding.  The answer is “Yes.”  One can always represent oneself in a court proceeding.

However, you need to keep in mind that in Minnesota, it is also legal to remove your own appendix. Just because its legal doesn’t mean that it is a good idea.

People who represent themselves are called pro se parties.  During a court proceeding, a pro se party is held to the same standard as an attorney.  A pro se party is expected to know the law, the rules, and the procedures, and he or she is expected to follow them.  He or she will not get a break from the court if he or she does not.

Generally speaking, the more complex a procedure becomes, the more necessary it is to have a attorney.  For example, if a person is appearing in court for the purpose of getting a domestic abuse restraining order, an attorney might not be necessary.  On the other hand, if a person is appearing in a series of court proceedings involving disputes about child custody, child support, spousal maintenance or other issues, hiring an attorney is probably a good idea.  It is very important that one hire an attorney if one’s spouse has hired an attorney.

Again, the court will let a person without an attorney represent themselves in court proceedings.  But, if that person messes up, they will not get a break.

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MN Divorce – Temporary Hearing

In a Minnesota divorce proceeding, if the case is not resolved early on by the Early Neutral Program or mediation, the next step might be a motion for temporary relief.  A “motion” is when one asks the court to do something.  In divorce cases, the usual motion seeks to have the court award temporary child custody, temporary child support, temporary spousal maintenance, etc.  A motion is a formal written request that is served and filed at least fourteen days prior to the date of the motion hearing.  The party opposing the motion needs to respond ten days before the hearing (if that party is seeking new relief) or five days before the hearing (if that party is not seeking new relief).

In many counties, it is difficult to obtain a prompt court date.  In Hennepin, Ramsey, Anoka and Wright County, for example, it can take two months or more to get on the court’s motion calendar.  And, many judges do not like to conduct hearings on temporary relief motions, and many might just say “take the case to trial.”

Sometimes temporary relief hearings are necessary, sometimes they are not.  I advocate aggressive pre-divorce planning and in many cases this can put the party in a position where they do not need to bring a motion for temporary relief.

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Minnesota Divorce Procedure

As I mentioned in the previous blog post, most courts in Minnesota do not use an Early Neutral Evaluation program.  In those counties, the procedure that takes place during the divorce is somewhat different.

Most Minnesota divorce courts convene a pre-trial hearing to talk about the scope and parameters of the case.  Often this is an in-court appearance with the attorneys and the parties, but it can also be accomplished by mail.  (The parties each send in an “Informational Statement” and on the basis of that alone the court will enter a pre-trial order.)

Some form of alternative dispute resolution (ADR) is required.  Usually this takes the form of mediation.  So, it is almost always the case that the court will order the parties to participate in mediation.  In mediation, the mediator tries to settle the case.  However, if the case is not settled, unlike an Early Neutral Evaluation, the mediator will not give his or her “evaluation” of the prospects of either party, should the case go to trial.

One thing that many people do not understand is that mediation adds another layer of cost to the proceeding.  A mediation session takes, at a minimum, about three hours.  However, it can take longer if progress is being made.  Sometimes mediation can be spread out over several days.  So, the parties have the cost of the attorneys plust the cost of the mediator to pay.  Usually, mediators charge anywhere from $250 per hour to $400 per hour, depending upon the mediator.

If mediation works, its a good thing.  It can save the parties a lot of money that they would otherwise spend going to trial.  If mediation does not work, it can be perceived by the parties as a waste of money.  In my experience, usually people want to settle the divorce and avoid the emotional and financial cost of a trial.  In those cases, mediation is likely to work.  Sometimes, however, one party does not really want to settle, and he or she wants to “punish” the other party by dragging the divorce proceeding out and making it cost more.  In those cases, mediation does not work.

Mediation is not a good idea if there has been domestic abuse between the parties.  And, while mediation is almost always required by the court, cases involving domestic abuse present an exception.  A court will usually not order mediation if domestic abuse has occurred.

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Something A Little Different

Hey everyone,

I just thought I’d let you know that I am participating in the Cry America 5K run / walk fundraiser that will be held at Como Lake on Saturday, July 17, 2010.  Cry America is a charity that supports education and health care for children in India, and also supports Boys and Girls Clubs in the United States.

Read more about it here: http://www.america.cry.org/cryevents/walk/walk.

MN Divorce – The Next Step

For those of you who have been following the blog, I am writing about the various steps in the divorce process in Minnesota.  So far, I have talked about service of the Summons and Petition (by the Petitioner) and service of the Answer (by the Respondent).

Typically, each party files his or her pleading with the court and pays the court filing fee.  The court filing fee is $400 for each party ($800) total.  In some counties it is slightly higher.

A bit about terminology.  In Minnesota divorce cases, the party who starts the proceeding is called the “Petitioner.”  The other party is called the “Respondent.” A “pleading” is any document that you file with the court that is related to the divorce proceeding.  A divorce Petition, a divorce Answer, a Motion, a supporting Affidavit, are all “pleadings.”

After the process is commenced by service of the Summons and Petition, the next step will vary, depending upon the Minnesota county the proceeding takes place in.  Different counties follow different rules.  The reason for this in part has to do with the size of the county and the way that particular county system operates.  In many large counties (Hennepin, Ramsey, and Anoka) for example, a case is blocked to a specific judicial officer.  In other counties (Dakota, Scott, Carver) for example, a case is not blocked to a particular judge, and the parties could have a different judge each time the appeared in court for a particular matter.

In Hennepin County, the family court schedules an Initial Case Management conference as soon as the case is filed.  The rules require that the ICMC be held within 21 days.

At the ICMC, the court will ask whether the parties want to take part in two voluntary settlement programs.  If child custody and parenting time is in dispute, the court will offer a Custody Early Neutral Evaluation program.  The parties meet with two evaluators who will discuss the case with them and try to bring about a settlement.  If they cannot, they will provide their own evaluation of the likely outcome of the case.  CENEs are not free.  You have to pay for this.

At the ICMC, the court will also ask whether the parties want to participate in a Financial Early Neutral Evaluation program.  Its similar to the CENE, except it pertains to financial issues only, and there is only one evaluator.  FENEs are not free.  You have to pay for this, too.

I have some philosophical problems with the ENE programs.  They can be a good thing, and generally I support the concept.  But, more often than not, the evaluators are not lawyers, they are social workers. I have a problem when  a non-lawyer gives his or her evaluation of the likely outcome of a custody trial.  In my view, this is practicing law without a license.  (Generally speaking, practicing law involves applying a legal analysis to a particular fact situation.  In Minnesota, you are not supposed to do this unless the Minnesota Supreme Court gives you a license to do so.)

A social worker has never argued a case in court, has no idea about the leanings of a particular judicial officer, and generally should not be offering an opinion about what might happen if a case is litigated.

I also think that some neutrals can be too quick to give their own evaluation, and then terminate the meeting, when the case is not settled.  The evaluators who are social workers do not typically understand how negotiation works, they often do not appreciate the give and take, they often think their opinion is the only possible “correct” opinion, and they can get in the way of settlement.

This is not true for all Early Neutral Evaluators.  Many are very good, and do very good jobs.  But, you need an attorney who knows the difference, and knows when the evaluation has validity and when it does not.

In my next blog post, I will write about how the process works in counties that do not have an ENE system.

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MN Divorce – What Is An “Answer”?

In the previous post I talked about the divorce Summons and Petition for Dissolution of Marriage.  Service of these documents is the event that commences a divorce proceeding in Minnesota.  A person who is served with a Summons and Petition has 30 days in which to serve an Answer.  If he or she does not do so, and does not otherwise appear in the proceeding, he or she is in default.  This means that the initiating party can go to court, without any notice to the responding party, and obtain a divorce decree that grants just about any relief that person asks for.

So, how does one “Answer” a divorce petition.  First, I will tell you how you do not do it.  You do not send a letter to your spouse or to his or her attorney.  Nor do you simply call them up.

In Minnesota divorce proceedings, an Answer is a formal pleading that contains information similar to that found in the Petition for Dissolution of Marriage.  An Answer usually contains a request that the Petition be denied and it contains its own prayer for relief.

In Minnesota, both a divorce Petition and a divorce Answer must be verified.  This means that at the end of the document, they must contain a sworn statement, signed under oath by the party, that the information set forth in the Petition or in the Answer is true and correct, to the best of the party’s knowledge and belief.  Additionally, in Minnesota, both a divorce Petition and a divorce Answer must contain a signed acknowledgment (usually signed by the attorney and the party) to the effect that the party is aware that attorney’s fees may be awarded to the other party, if the person signing the pleading is acting in bad faith, defrauding the other party, etc.

Tomorrow I am going to write a blog about attorney’s fees in Minnesota divorce proceedings.

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MN Divorce Petition

A Minnesota divorce proceeding is started by the service of a Summons and Petition for Dissolution of Marriage.  “Service” means that the documents (the Summons and Petition) need to be personally handed to the recipient by someone other than his or her spouse.

A Summons is a document that in effect gives the district court jurisdiction over the recipient.  In Minnesota divorce proceedings, the Summons will state that the recipient has 30 days in which to serve an Answer to the Petition.  (Note: in other civil lawsuits, the recipient of the Summons typically has 20 days to Answer.  This is true of paternity suits, which fall under the civil lawsuit rules and not the divorce rules.)

If the recipient of the Summons and Petition does not serve an Answer, or otherwise appear, within 30 days after service, he or she is in default.  This means that the initiating party can approach the court for relief without any further notice to the party receiving service of process.

In Minnesota, a divorce petition contains very general information about the parties and the marriage–names, birth dates, addresses, names of children, information about employment, assets, etc.  The Minnesota divorce petition also includes a very general prayer for relief.  A “prayer for relief” is a statement of the various things the Petitioner would like the court to do: end the marriage, award child custody and child support, award spousal maintenance (or not), divide property, etc.

Unlike most states, and unlike the federal system, in Minnesota, civil lawsuits (including divorces) are started by service of process, not by filing pleadings with the court administrator.  Often, an attorney will start a lawsuit by service of process, but refrain from filing the pleadings with the court administrator, to see whether the case can first be resolved through negotiations.  This is called “pocket filing.”

Generally, pocket filing is a good practice because it can lead to settlements.  However, when cases are settled quickly, this often means that only one party actually needs to pay the court filing fee.  (In most Minnesota counties, the court filing fee for each party is $400.)  Because the court system is so severely underfunded, there is discussion about doing away with pocket filing and requiring each party to pay the court filing fee.

If you have been served with a divorce Summons and Petition in Minnesota, don’t mess around.  You need to serve an Answer within 30 days.  Or, you need to obtain a written extension of time to serve an Answer from the attorney representing the Petitioner.  If you do not do either of these things, you will lose.  You should not wait until the last minute to hire an attorney.  While preparation of the Answer may only take an hour or two, most attorneys are busy and need time to fit the work into their calendars.

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MN Divorce, Fear and “Discovery”

I am a Minnesota divorce lawyer.  I practice divorce law in Hennepin County, Minnesota.  Divorce varies significantly from state to state, because it is pretty much a creation of state (not federal) law.  However, one thing that I think is common in all divorces, regardless of where they take place, is “fear.”

One of the things that really sucks about divorce is fear.  Yep.  The garden variety, common, every day fear.  People who are getting divorced are venturing into the unknown.  Emotionally, financially, in just about every way, their life is going to change.  This causes many people to experience fear.  They might not call it “fear,” and their inner experience may resemble anxiety, depression, concern, etc., but in its most primal form, in my opinion the bigger problem is just fear.

Assuming that one is not a robot, I think that much of the emotional trauma that is attendant to divorce is unavoidable.  But, one way to alleviate some of the fear is to make sure that you have complete and accurate financial information about your spouse’s (and your) assets, income and debts.  Even if you and your spouse are going to reach an amicable settlement where you each sign a written agreement (a “Marital Termination Agreement” in Minnesota) and walk away, you need to know about your spouse’s assets, income and debts.

For some of you this is easy.  Your house is underwater, your spouse has been unemployed for years, and you have few retirement assets.

For some of you this is more difficult.  You each have retirement assets, some of which was accrued before, and some after, the date of marriage.  You have a house, cars, lots of bills, but also adequate income to pay most of the bills on time.

Before the divorce starts, you should make copies of important financial documents.  This includes income tax returns for the past several years, W-2 forms, 1099 forms, retirement account statements, documentation of the purchase of your home, recent paycheck stubs, credit card statements, bank account statements, check book registers.  I am not telling you to break into your spouse’s private records, but if copies of these documents can be made easily, you should do it.  Then, you should but them in a box and take them to your friend’s house for safe keeping, until you need them.

If you cannot find copies of these documents, there is a process your attorney can follow during the course of the divorce proceedings called “discovery.”  Essentially, your attorney can compel your spouse to turn over copies of all important documents.  Your attorney can compel your spouse to answer questions about his or her finances, and anything else.  Your attorney can also subpoena other people and require them to provide information about your spouse under oath.  This could include your spouse’s employer, his or her banker, or anyone else who might have information.

Here’s the thing: discovery is expensive.  If you can obtain financial information informally, that’s best because it doesn’t cost as much money.

If you have any questions about this, call Minnetonka divorce attorney Dan Fiskum 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.

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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The Divorce System In Minnesota

One of the problems with the divorce process in Minnesota is that procedures vary greatly from county to county.  This should be corrected by the Minnesota legislature.

Historically, the model for the divorce process in Minnesota was the “litigation” model.  In other words, divorce was treated like any other lawsuit.  Motions for temporary relief were very common, and both parties were  subject to the rules of discovery.  The litigation model works well for businesses like IBM, 3M, Medtronics, and other large corporations with unlimited funds to pay attorneys, but it does not work well for the average couple who need to get divorced.

In some counties, the litigation model is being replaced with a mediation model.  In Hennepin and Anoka counties, for example, there is an Early Neutral Evaluation program that funnels parties to either custody mediators or financial mediators.  During this time, the parties are not allowed to conduct discovery.  (A lot of practicing lawyers do not know this, but there is a standing order in Hennepin County, signed by Judge Swenson, that prohibits service of formal discovery until after the Initial Case Management Conference.)

The problem is that within Minnesota, there is no uniformity from county to county.  There should be.  My personal opinion is that it is proceduarlly unfair for people in one county to be treated differently under the law than people in another county.  Among other things, the variance in procedures creates a “home town” advantage for the lawyer who’s office is located across the street from the county courthouse.   Another problem is that there is not necessarily a reliable source of information for the attorneys or the parties on how best to proceed.  

Minnesota would benefit from a uniform divorce procedure.  The Minnesota legilature should take this issue up the next time it convenes.

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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Sandra Bullock’s Divorce

It is in People Magazine today, so it must be official: Sandra Bullock is filing for divorce.  Apparently she and her estranged husband Jesse James began adoption proceedings about four years ago, and just within the past few months brought their child home.  It is unusual for a divorce proceeding to emerge in the midst of an adoption proceeding.  Its probably happened before, but I am not aware of any cases in Minnesota.  In part, this is because in Minnesota, adoption cases are strictly confidential.

I always think it is unfortunate when public figures have to go through public divorces.  I suppose a public divorce goes with the territory.  Of course, I know that any public figure is really a business enterprise–they have pubicists, press agents, wardrobe stylists–literaly dozens of people whose job is to run the business that is the public figure–in the case, Sandra Bullock.  But, I also know that behind the layers of carefully crafted public persona there is a real human being who is experiencing fear, sadness, anxiety, depression, and sometimes embarassment.  Of course, I do not think that Ms. Bullock has anything to be embarassed about. 

So, how does the adoption fit into the scheme of things?  The law could be different in California.  But in Minnesota, its possible that now the adoption might not go through, if both parents are jointly petitioning for the adoption and one of them starts a divorce proceeding.  Its hardly in the best interests of a child to allow him or her to be adopted by two parents who are divorcing.  Minnesota does allow a single parent to adopt, and it is possible that a Minnesota court might allow one of the parties (in this case, Mr. James) to be dismissed from the proceeding and allow Ms. Bullock to adopt as a single parent.  But, this would likely require Mr. James’s consent. 

I doubt that child support will be an issue for either Ms. Bullock or Mr. James.  But, for ordinary people, the issue of paying child support for an adopted child for the next 16 to 18 years could be a big issue.  And, in Minnesota the courts are supposed to take into account the ability of a proposed adoptive parent to support the child he or she is adopting.

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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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The Cost of Minnesota Divorce

People often ask how much it costs to get divorced.  The answer is “it depends.”  Certain costs are predictable.  Currently, it costs $400 to file a divorce petition in a Minnesota district court.  Some counties charge slightly higher, depending upon the amount of the surcharge for the county law library.  If each party appears in the proceeding, each party has to pay their own filing fee of $400.

It costs $100 to bring a motion for temporary relief (or to file any other kind of motion) in family court.  This is in addition to the $400 court filing fee.  Again, each party that appears in the motion proceeding has to pay the $100 filing fee.

It costs $25 to file a document by fax, even for a one page document.  Sometimes, because of time deadlines, it is necessary to file by fax.  If the fax is more than 50 pages, it costs another $25.

To start the divorce process, the responding party has to be personally served with a copyof the Summons and Petition for Dissolution of Marriage.  Depending upon who does the service, the cost can be $50 on up.

If the court requires a custody evaluation, this can cost quite a bit.  In the past, courts had internal court services workers who would perform custody evaluations.  Generally speaking, the courts no longer offer this service because of the cost.  So, custody evaluations are often done by professional psychologists or sometimes professional social workers.  The cost of a custody evaluation typically starts at about $5,000.  This would be an inexpensive evaluation.

If the parties agree on everything, it could still take 10 or so hours of attorney time to prepare all of the paperwork and actually get the parties divorced.  If the parties have a lot of assets to divide (retirement accounts, real estate, motor vehicles) it can take more than 10 hours, even with an amicable settlement.

If the parties disagree, divorce can cost quite a bit.  The biggest cost is the cost of a contested child custody proceeding.  This can cost thousands and thousands of dollars.  Sometimes its worth it to fight about this, and sometimes its not.  This is a decision that one needs to make for one’s self, weighing the benefits and the disadvantages.

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

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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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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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Living Together Without Marriage

Occasionally someone will ask me about cohabitation in Minnesota.  “Cohabitation” is another way of saying “living together.”

If you are thinking of moving in with your boyfriend or girlfriend without getting married, here are some things to consider:

If you are going to contribute towards payment of the mortgage, you should have something in writing stating very clearly that you are doing so.  The document should also state what, if any, ownership interest you will have in the house because of your mortgage payments.  Your name should also go on title to the house by way of a quit claim deed or other deed that transfers an ownership interest to you.

If you do not do this, and if the relationship ends, you will have nothing to show for all of your mortgage payments.  You will not be married, so  there will not be any marital property that you have an interest in.

Minnesota does not have “palimony.”  In fact, it has a law that specifically says it does not have palimony.  This means that you will not be entitled to any payment similar to spousal maintennace when you split up.  It also means that you are not entitled to any of your partner’s property when you split up.

Verbal agreements do not count.  With respect to real estate, verbal agreements are strictly prohibited.  If you want to claim an interest in someone else’s real property, you should be on title and you absolutley must have a fully signed written contract that sufficiently describes your interest, the consideration you paid for your interest, and the way the value of your interest should be determined. 

With respect to personal property, verbal agreements are extremely difficult to enforce.  I usually tell people that verbal agreements are not worth any more than the paper they are not printed on.

If you are living with your partner and he or she dies, if you are not on title to the house your partner’s heirs could force you to move immediately.  Of course, your partner could name you as a beneficiary in his or her will and award the house to you, but if he or she does not, you will have a problem.

If you are not married, and not on the mortgage and do not appear as an owner of record on the house, but you make contributions to the monthly mortgage payment (PITI) , you cannot deduct the property taxes and interest on your income tax returns.

I recommend that people who have a significant romantic relationship, and are thinking about moving in together, should have a written partnershiup agreement that clearly states who will pay for what.  If you believe that you both “own” your boyfriend’s or girlfriend’s house, then you should put it in writing.

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MN Divorce Mediation – When Is It Necessary?

There are a lot of misconceptions about divorce mediation in Minnesota.  The following might be helpful:

1.  What is mediation?  It is a process in which the parties to a divorce action and their attorneys meet with a neutral third party in an attempt to resolve disagreements through negotiations.

2.  Should we do mediation right away?  Probably not.  You should wait to see whether you and your spouse have a significant disagreement that cannot be resolved between the two of you, or, between the two of you with input from your attorneys.

Generally I try resolve disputes from the beginning.  I try to find out whether there are intractable disputes.  Sometimes disputes exist simply because people do not know what the law requires.  Often the other attorney and I can reach a settlement without the need for a mediator.  This is always better, because mediation costs about $250 per hour.  Spend a day in medation and, well, you do the math.

3.  Do I need an attorney if I go to mediation?  Yes.  Otherwise, you will probably not know what your legal rights and entitlements are.  How can you bargain for something if you do not know about it, or you do not know whether you have an interest in it?

4.  Will the mediator give me legal advice?  No.  The mediator’s job is to be neutral, and to try to get you and your spouse to reach an agreement.  The mediator should not be giving legal advice to you, and she should not be giving legal advice to your spouse.  If she did, she would no longer be neutral.  And, the mediator is not interested in getting you the best possible deal.  The mediator just wants to settle the case.  He or she isn’t necessarily interested in whether you get a “fair” settlement.

5.  How should I pick a mediator?  You probably shouldn’t.  Some mediators are good, some are ineffective.  A Minnesota divorce lawyer who has experience generally knows who the good mediators are.   The same names tend to come up often.

6.  What if mediation doesn’t work?  Well, not everything works.  At least you tried.  If you cannot settle the case during mediation, the case is placed on the court’s litigation calendar.  A pre-trial hearing is scheduled, to be followed by a trial.

But–if that happens, all is not lost.  There is still time to settle the case.  There is still time to return to mediation.  That said, sometimes trials are the easiest way to resolve a dispute.

For more information, please feel free to call me at (952) 270-7700.

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Hennepin County FENE

In Hennepin County, they have a program called “Financial Early Neutral Evaluation.”  It is similar to the custody and parenting time neutral evaluation program, but there are differences.  For example, there is only one evaluator and the parties are required to pay him or her an hourly rate. 

I have participated in Financial Early Neutral Evaluation proceedings in Hennepin County on numerous occasions.  My experience is that sometimes it is effective, sometimes it is not.  In my opinion, the difference is the quality, skill and experience of the neutral evaluator.   The hands-on evaluators who work actively to push both parties towards a reasonable settlement tend to get the best results.  The evaluators who seldom express an opinion, who rely on accountants or others to do their work, tend to get worse results.

Call me for more information and a free consultation at (952) 270-7700.

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How to Pick a Divorce Lawyer in Minnesota

People sometimes ask me for advice on how to pick a divorce attorney in Minnesota.  Usually these are people who have never needed an attorney in the past.  They have no experience with the legal system, no experience with attorneys, and have no idea where to begin.

Generally speaking, it is best if a person like this talks to a few attorneys, either by telephone, or preferably, in person.  Most attorneys give free initial consultations, but some do not.  This in itself does not mean that you should or should not hire an attorney who does not give a free initial consultation.  But, if you do not want to pay for a consultation, you need to make sure that the attorney you are meeting with will do it for no charge.

At an initial consultation, an attorney should be able to explain the basics of how the divorce process works in terms that you can understand.  He or she should be able to explain about the various forms of alternative dispute resolution that are available.  He or she should also be able to explain all of the fees and costs involved.  Typically, an attorney who gets involved in the case will charge a retainer.  A retainer is usually an advance payment for work the attorney does in the future.  Usually, the retainer pays for work to be performed, and at the end of the representation any amount left over is refunded.  However, this is not always the case, and you need to make sure that you understand this point.  Some attorneys and law firms charge a retainer just to be available to do the work.  You pay the retainer, then you also pay additionally for the actual work.  Make sure you ask.

It helps to ask what law school your attorney attended.  All law schools in the United States are ranked.  The higher ranked schools are more difficult to get in.  There is more competition for these schools and only the smarter students get accepted into the better schools.  While all attorneys who are licensed to practice in Minnesota have the minimum qualifications required by the Minnesota Supreme Court, you should at least know what law school the attorney you are going to hire attended.

It is also helpful to hire an attorney who practices primarily in the area of divorce law.  Divorce law in Minnesota is always changing.  An attorney who practices primarily in the area of divorce law will more likely be up to date on the various changes that the law undergoes.

I have never met a person who was actually happy to pay a divorce attorney.  This is understandable.  People have a lot of things they want to spend their money on, and a divorce attorney is very low on this list.  However, people also have a lot of things they need to spend their money on, and a divorce attorney can be very high on that list.  This depends upon the client’s issues and circumstances.  If they are facing a tough legal fight brought on by an embittered spouse who wants revenge at all costs, then that person needs competent legal help.   It is their embittered spouse who actually determines the length and cost of the proceeding.

Elsewhere on this blog I have written about collaborative law in Minnesota.  Look for that blog post because it also pertains to hiring a divorce attorney in Minnesota.

For a free initial consultation, feel free to call Dan Fiskum at (952) 270-7700.  While I am happy to answer basic questions about the divorce process, my experience, fees and costs by telephone, I cannot give legal advice over the telephone to someone I have not met.  I go into much more detail when a person comes in for a free initial interview that takes place in my office.

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MN Orders for Protection and Divorce

In Minnesota, there is a type of court order that is called a “domestic abuse order for protection.”  This is an order that is intended to protect an abused party from an abuser.  Typically, a domestic abuse order for protection provides that the abuser may not have contact with the abused party, and that if he or she does, he or she is subject to arrest and prosecution.  To obtain an order for protection in Minnesota, the abused party files a petition in district court which states the nature of the abuse and sets forth the relief requested.

When people are genuinely the victims of domestic abuse, an Order for Protection is a necessary an appropriate remedy.  No one should be abused or threatened.  The abusing party does not get a free pass, just because he or she happens to be married to the person they are abusing.  If you are the victim of domestic abuse, you should seek help from an attorney and you should consider all options, including filing a petition for an Order for Protection.

Unfortunately, many people falsely claim that domestic abuse occurred in order to gain an advantage in a divorce proceeding.  This is unfortunate, but it happens to be reality.  Some people lie.  They often justify this to themselves by thinking that the end justifies the means.

If you are getting divorced, your spouse may lie about domestic abuse in order to get a quick order throwing you out of the house.  If this happens, you should consult with an attorney.  At a domestic abuse hearing you will be presented with three options.  None of them are very good.  But, generally speaking, it is best to try to get the court to defer all decisions relating to custody and parenting time to the court that is presiding over the divorce proceeding.  Often the best way to accomplish this is to avoid a trial on the issue of whether the domestic abuse occurred.  This can be done by agreeding to entry of an Order for Protection without the court making a finding that domestic abuse occurred.  Then, take up the issues of child custody, parenting time, child support, etc., in the divorce court.  Generally you will get a fairer hearing.

I want to emphasize that I understand that there are real victims of domestic abuse.  These people are entitled to an Order for Protection.  But, there are also people who lie about domestic abuse in order to gain an advantage over their spouse.  If a case is presented correctly, I have confidence that our court system can tell the difference.

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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Obtaining Financial Info in MN Divorce Cases

Often a party to a divorce proceeding will try to hide information about his or her income and assets.  There are various tactics an opposing attorney can use to try to obtain documentation about a party’s real income or assets.

There are, of course, the obvious sources.  These include income tax returns and paycheck stubs.  The problem is that people sometimes lie on their income tax returns and they often receive income that is not reflected on a paycheck stub, W2 or 1099 form.

If the person has a car loan or a mortgage loan, ask to see the actual loan application form that the person filled out when applying for the loan.  Even if the party is hiding income from the divorce court and the IRS, he or she will likely disclose all income to a bank in order to qualify for a loan.  If the party will not give up the loan application, depose an officer of the bank.

Mortgages are on file with the county.  Look at the person’s mortgage.  You can generally calculate what a person’s monthly mortgage payment is if you know the amount of the loan, the term, and the interest rate.

You can also determine the amount that a person paid for real estate by calculating how much tax was paid to file the deed.  The tax varies, depending on the cost of the property.

Often people who are self employed will hide income in their business.  Tney do this by having their business pay their personal expenses.  The business might pay for their car, car insurance, gas, car repairs, food, clothing, rent, etc.  So, the attorney investigating this needs to look at the business records, Quickbooks files, etc.

Sometimes you have to discover checking account statements and checking account records.  The most helpful record is the actual check book register that lists the check numbers, payees, and amounts.

Check court records to see what other lawsuits the party might be involved in.  You never know.  If the party was married before, review the court’s file from the prior divorce proceeding.

Finding undisclosed income and assets is not easy, and often it is not worth the cost.  However, if the income or assets are significant, and if the litigation is adequately funded, with some investigative work an attorney should be able to assemble a reasonable summary of income, assets and debts.

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Divorce Mediation in MN

People often ask me about mediation.  Mediation occurs when two parties to a divorce try to negotiate an amicable settlement with the help of a neutral third party.  I am all in favor of mediation, though because it costs quite a bit I usually try to resolve the case directly with the other party’s attorney.  If that does not work, then I often propose that the parties and attorneys agree to participate in mediation.

The mediators that I use are professional mediators who have had specific training in resolving divorce cases.  They have knowledge about financial issues and custody / parenting time issues.  usually the mediators I use are attorneys who have had additional training as a third party neutral.

Mediation is voluntary.  It is also confidential.  If the parties do not resolve the case, none of the things that are said in mediation can be repeated to the judge or used in the courtroom.  The only exception to this rule is that if there are credible allegations of child abuse, the mediator is obligated to do what the law requires and report the abuse to the proper legal authority.

People should never use someone they know personally to try to broker a divorce agreement.  This is a bad idea for several reasons.  It unfairly puts someone in the middle and often demands of them skills that they do not have.  Similarly, people should never use a priest, pastor, minister or rabbi to try to broker a divorce agreement.  Generally speaking, people like this just lack the specific legal knowledge needed to bring about a reasonable (and enforceable) agreement.

If you have more quesitons about divorce mediation in Minnesota, please feel free to call me at (952) 270-7700.

Minneapolis Divorce Lawyer

Every once in a while, people ask me whether I will travel to out state Minnesota to represent someone in a divorce proceeding.  Usually the answer is “yes,” but I have to qualify the answer.  As a Minneapolis divorce lawyer, I primarily work in the greater Twin Cities are, including Minneapolis, St. Paul, and the surrounding seven county area.

There are two issues relating to my working out of state.  The first is that it can get expensive if I have to travel to a destination that is more than, say, 100 miles out of the Twin Cities.  The second issue is that there can sometimes be a “home town” advantage that goes to local counsel.  Generally, an attorney who practices in a small town in northern Minnesota is more familiar with the local bench and their local rules and practices.  Sometimes this can be an advantage.

On the other hand, since I settle most of my cases amicably, without a trial, knowledge of the local rules and peronalities is not as important.  As we are taught to say in law school, “It all depends.”

I do not represent people in Iowa, Wisconsin, or the Dakotas, unless the case involves Minnesota parties or Minnesota issues.  Divorce law is unique from state to state.  For example, Wisconsin is a community property state while Minnesota is a common law property state (Minnesota is also called a “marital property” state) but common law is more accurate because essentially the existing common law was incorporated into Minnesota’s divorce statutes when the statutes were written.

So, even though I am a Minneapolis divorce lawyer, I welcome telephone inquiries from all over the State of Minnesota.  Sometimes I can be helpful, sometimes I can’t, but its always worth a telephone call to find out.

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Appealing a MN Divorce Decree

People sometimes ask about appealing a case to the Minnesota Court of Appeals.  Generally speaking, it is difficult to overturn a judge’s decision on appeal.  But, like all of us, judges are human and they make mistakes.   Sometimes an appeal is necessary.

What follows is not legal advice.  You have not retained Fiskum Law or MN divorce lawyer Dan Fiskum unless you have a signed written retainer agreement.  With this disclaimer, I’ll say the following about appeals:

Under the current MN Rules of Civil Procedure, a party has 60 days from the date a divorce Judgment and Decree was entered to notice and file an appeal.  However, if you believe you want to appeal your case to the Minnesota Court of Appeals, do not wait until the 59th day.  Preparing an appeal takes a significant amount of time, and it cannot be done in one day.

For post-decree orders other than a final divorce judgment and decree, a party has 60 days to appeal, counting from the date of service of notice of entry of the order by the opposing party.  Generally, temporary orders, that is, orders entered during the time the proceeding is pending, are not appealable. 

Appeals are expensive.  The court filing fee for the Minnesota Court of Appeals is $550.  The appealing party is also required to post a bond with the district court, or to deposit $500 in lieu of bond with the district court administrator.  However, the cost of the bond can vary depending on the financial value of the issued involved on appeal.

The appealing party needs to purchase a copy of the transcript from the trial.  Typically these cost $3.50 or so per page.  A transcript can be several hundred pages in length, so the cost can be very significant.  The appealing party also needs to purchase eleven copies of the appellate brief.  The cost of printing and serving the appellate brief can be hundreds of dollars.

Of course, then there is the attorney time.

So, before you consider appealing your divorce judgment to the Minnesota Court of Appeals, you need to consider very carefully what you stand to gain and weigh that against the costs of appeal.

One other point–before appealing to the Minnesota Court of Appeals, a party has the opportunity to as the district court judge to amend the findings and judgment.  This is actually necessary step in any appeal, because it changes the appellate standard of review and makes it somewhat more favorable to the appealing party.  Usually, judges do not change their minds.  However, I have had many cases where I successfully brought a motion for amended findings and an appeal to the Minnesota Court of Appeals was not necessary.

A motion for amended findings needs to be scheduled within 30 days of the date the judgment was entered.

So, if you are considering an appeal, do not waste time.

The foregoing is not legal advice and does not create an attorney and client releationship between the reader and Fiskum Law, or MN divorce lawyer Dan Fiskum.

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When Should You Hire an Attorney?

A lot of people wonder if they really need an attorney.  Or, they may think they need an attorney, but want to bring him or her onboard only towards the end of the proceeding.

When people who are getting divorced ask me whether they need one, my answer is “Yes.”  Of course, I am an attorney and I have a bias.  But, even with my bias, my answer is still correct.  If you are getting divorced you need an attorney.

Another question people might have is whether they can afford an attorney.  That’s not a question I can answer.  I usually suggest that they cannot afford not to have an attorney, but then again, I’m biased.  I know that  a lot of people cannot afford to hire an attorney.  This is one reason that I have a link to free divorce forms on my website.  I think this is a good idea.  It does not conflict with what I do, because I do not sell forms.  I sell legal advice.

Does it work to handle most of the divorce proceeding yourself, then bring the attorney on for advice after you have signed an agreement?  No, this does not work. 

Here’s a question: would you sue someone for $300,000.00 without an attorney?  Probably not.  If you were being sued for $300,000.00, would you hire an attorney to defend you?  Probably.  Okay, so what if spousal maintenance is an issue?  Assume that under the facts of your case, either you or your spouse is entitled to $2,500 per month in spousal maintenance for ten years.  Do the math.  In one year, $2,500 per month equals $30,000.00.  Over ten years, $2,500 per month equals $300,000.00.  Regardless of whether you are trying to get $300,000.00 or trying to avoid paying it, doesn’t it make sense to have the professional help of an attorney?

There are other areas where it makes sense to get legal advice from an attorney.  There are nuances to child support and child custody laws that the average person does not understand.  And, why would they?  Most people only get divorced once or twice in their lives.  I have not kept track, but I have probably been involved in at least two thousand divorces, giving advice, representing clients in divorce proceedings, post divorce proceedings, child support modifications, paternity proceedings and other kinds of court proceedings.

You can rely on what Chuck from shipping told you about his divorce.  Of course, he might have been divorced ten years ago, in front of a different judge, when different laws were in effect, with totally different facts.  Or, you can rely on what an attorney tells you.

What are Family Court Referees?

There are two counties in Minnesota that use “referees” in family court.  These counties are Hennepin and Ramsey.  A referee is a judicial officer who has authority to make rulings in divorce cases.  A referee does not have the same level of authority as a judge.   Typically, orders issued by family referees are “recommendations” that a district court judge needs to approve.  In practice, district court judges tend to approve most, if not all, orders that are recommended by a referee.

The Minnesota court system began using family court referees sometime around 1980.  Family court referees are paid somewhat less than district court judges.  In Minnesota, a district court judge is paid $129,124.00 annually.  A family court referee is paid $116,197.00 annually.    So, using referees instead of judges represents only a moderate cost savings. to the court  Generally, judges are rotated on and off the family court bench every couple of years.  The available pool of judges in Hennepin County is quite large.  There are probably about 50 judges on the Hennepin County bench, so at any one time only a portion of them are sitting on the family court bench.  Family court referees stay on the family court bench during the entire time they are a family court referee.  Courts, like other institutions, tend to have institutional memories.  I suspect that having a core of judicial officers (family court referees) who stay on the family court bench their entire career makes for continuity in the family court division.

In Minnesota, the mandatory retirement age for judges is age 70.  This is established by statute.  There is no mandatory retirement age for referees.  In fact, once a chief judge asked a family court referee who was 70 to retire.  The referee challenged the request, the case went to court and to an appeal, and the appellate court confirmed that the referee was not required to retire at age 70.

In Hennepin and Ramsey Counties, cases are assigned to judicial officers (that is, to judges and referees) by a central assignment office.  In Hennepin County, there are approximately 8 or 9 judges on the family court bench, and approximately 5 referees.  In Ramsey County, there are approximately three judges on the family court bench and approximately 5 referees.  Whether your case is assigned to a referee or a judge should not make a big difference. to the outcome of your case.

Each party has the right to remove a judicial officer from their case, without cause.  However, a removal without cause can only be done if the judicial officer has not yet issued an order in the case, and it can only be done once.  However, if that party wants to remove a second judicial officer, the party has to affirmatively demonstrate that the judge is biased, or that there may be some other appropriate reason.

Why Divorce Sucks

Divorce is a difficult process.  It is jarring.  It is emotional.  Aside from the death of a loved one, divorce is probably one of the more miserable experiences a person will have.  People going through a divorce have anxieties about the future.  They have concerns about how divorce will impact their children.  They have worries about debts and bills and who’s going to pay them.  They have worries about how they will afford medical insurance after the divorce. 

But possibly the worst part about divorce is that the person they used to confide in–their spouse–is now their adversary.  The person that they used to rely upon for emotional, moral and financial support is now their opponent in a legal proceeding that is expensive and that will leave one or both of them worse off in many respects.

Don’t get me wrong.  I’m a divorce lawyer, not a marriage counselor.  I get people divorced.  If you want to save your marriage, you do not start by going to a divorce lawyer. 

Having said that, there is a way to divorce and turn down the volume a bit on the negative emotion.  I am not a psychologist, but I usually recommend to my clients that they try to understand their situation from a disinterested, third-party perspective.  I think it helps if one does not take the process “personally.” 

There is a great book that I often tell my clients about.  I did not write it, I do not know the authors, and I do not have any financial interest in the success of the book.  Its just a great book for understanding how human nature can play out in the context of a divorce proceeding.

The book is entitled “Mistakes Were Made (But Not By Me).”  It is written by Carol Tavris and Elliot Aronson.  It is available on Amazon for cheap.  This book describes the process of self-justification that we all go through.  The book does not limit its discussion to marriage and divorce, but it does contain a chapter on that subject.  The process of self-justification can turn us into irrational, irritable, mean-spirited people.

For most people, deciding to divorce a spouse is a big deal.  Once that decision is made, the person making the decision often has to justify it to himself or herself.  That’s right–they continue to justify the decision afterwards.  They often unconsciously (or even consciously) look for ways to create problems with their spouse or ex-spouse.  They do this so they can tell themselves that their spouse or ex-spouse really is a jerk and that their decision to divorce was justified after all.  They need to find or create “problems” in order to justify their decision.  It doesn’t take long for them to turn into bullies, convinced that any tactic they use is justified by their perception of their spouse’s behavior.

Here’s the irony: my experience is that mediation does not work with bullies, at least not right away.  Just like on the school playground, the only thing a bully understands and respects is the kid who stands up to him.

I find that when I have a shrill opposing party, represented by an equally shrill opposing attorney, if I try to be conciliating I’m just teaching them that they get what they want by being a bully.  Being a bully works for them, so the level of bullying escalates.  On the other hand, if I effectively make it clear that negotiations only begin when they realize that bullying will get them nothing, and when I back that up with my intention to seek court intervention by way of a motion for temporary relief or other action, the level of bullying often decreases to a point where genuine give and take can occur and a fair settlement can be reached.

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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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Collaborative Law in Minnesota

Occasionally people ask me about “collaborative law.”  They want to know what it is, and whether it is “better” than other alternatives.  I never answer this question directly.  I have many attorney friends who practice “collaborative law,” and I respect them and what they do.  To answer this question, I just present the questioner with a few facts and let them make up their own mind.

There is a lot of misunderstanding about collaborative law.  Much of the misunderstanding is the result of marketing hype from some collaborative lawyers who are trying to generate business for their law practice.   Some collaborative lawyers prey upon the concern of people who are getting divorced and who do not want to spend a lot of money.  Some collaborative lawyers prey upon the concern that some people have about going to court.

Marketing hype aside, a “collaborative law” divorce proceeding is not much different than any other kind of divorce proceeding.   The parties and their attorneys meet and try to settle the case.  Sometimes they bring in outside mediators or evaluators, and sometimes they do not.  They may meet once or twice or they may meet several times.  The primary difference that sets a “collaborative law” proceeding apart is that the parties and attorneys agree before hand that if they cannot settle the case, the attorneys will withdraw and the parties will retain different attorneys before going further.

I do all of these things for my clients.  I try very hard to settle cases.  I use outside mediators and evaluators.  I try to get comprehensive information about parties’ finances and other issues, and I try to bring about a reasonable settlement on behalf of my client.  However, if my client and I cannot settle the case, I do not bail out on them.  I continue to represent them, and if necessary I go to trial for my clients.

Which system is better?  It depends.  Some attorneys do not have trial experience.  They have not engaged in extensive pre-trial discovery practice, they have not taken depositions, they have not cross examined hostile witnesses, they have little knowledge of the bench, and generally they have little practical experience in the court room.  Out of fairness to his or her client, probably an attorney like that should withdraw if the going gets tough.

Collaborative law might not work well if one of the parties is a bully.  A bully can use the collaborative law process to drain the other spouse’s financial and emotional resources.  These meetings are expensive.  They take lots of attorney time to prepare for and attend, and attorney time costs money.  If, after a series of several meetings the bully decides that he or she cannot settle the case “after all,” then the money paid to the collaborative attorneys might be wasted.  The new attorney will need to charge to get up to speed on the case, and the divorce process essentially starts from scratch–except that the non-bullying party might have spent $5,000 or $10,000 needlessly on bogus settlement negotiations.  And, there is an emotional cost to investing in the collaborative process only to have it fail. 

Bullies understand all about emotional warfare.  They often have an intuitive understanding of how to use emotions to bully their spouse.  Bullying is not always about violence, per se.  It is also about threats, belittling someone, and undermining someone’s confidence and self esteem.  Often, bullies learn these lessons on the grade school playground, and they never forget them.

In my experience, settlement negotiations are more likely to be successful if there is the possibility of going to court if the negotiations break down.  Otherwise, what motivation does an opposing party have to settle the case?   Keep in mind that “going to court” does not necessarily mean having a full-blown trial.  Sometimes a judge can effectively settle an issue by making a ruling after 15 minute motion hearing.

While I usually do not threaten litigation during settlement talks, sometimes an intransigent opposing party needs to know that if a judge were asked to decide an issue, the decision might likely go against the opposing party.  That knowledge can motivate an opposing party to consider a fair settlement.  It can also motivate the attorney for the opposing party to encourage his or her client to settle.

Sometimes divorce is tough.  The reason people get divorced is because they cannot get along with each other when they are married.  Nothing magic happens to change people when they hire collaborative law attorneys.  If your spouse is argumentative and difficult to deal with during the marriage (which is why you are getting divorced, isnt’ it?) your spouse will probably be argumentative and difficult to deal with after you each have hired collaborative law attorneys.  The future tends to resemble the past.  Your spouse probably will not undergo a personality change over night. 

It might be pretty to believe that, even though you have just come through a horrible marriage, all you need to do is hire a collaborative law divorce attorney and every thing will be fine.  But reality is often different.  You need to carefully consider all of the reasonable options available to you, and you need to consider your spouse’s personality.  You need to consider the history of your marriage–how you got along, how you resolved conflicts, and, importantly, why you are getting divorced.  Then you need to decide whether you can afford to hire an attorney who will quit on you if your spouse does not agree to settle the case.

Feel free to call me at (952) 270-7700 for more information.

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MN Divorce Attorney

The phrase “Minnesota Divorce Attorney” is one of the phrases googled most often by people in Minnesota who are considering a divorce.  I suppose this is appropriate because it does make it easy for someone to find a list of Minnesota divorce attorneys.  But my experience is that after making an inquiry or two, people often select an attorney who many not be the best attorney for them and their situation.  Often, people do not know the right questions to ask.   Usually it is the first time they have hired an attorney and they just do not know how to proceed.

For example, many attorneys offer a so-called “flat rate” divorce.  They say that you can pay them a pre-defined amount and they will do all of the work.  My personal opinion is that this creates a possible conflict of interest between the attorney and the client.  Think about it.  Attorneys sell their time.  Imagine that an attorney has signed a so-called “flat rate” retainer agreement.  Imagine that something goes “wrong” with the process.  Either the parties cannot reach an agreement, one spouse is hiding assets, alienating children, or imagine that there is one of possibly a hundred of issues that can derail a divorce.  Imagine that this work takes a lot of “extra” attorney time.  Do you think the attorney is going to do that work for free?   Probably not.  Either she is going to not do the work (and pretend it does not need to be done) or she is going to tell you that it is time to negotiate a new retainer agreement.

If someone has been married for six months, has no children, no mortgages, no debt, then possibly a flat-rate divorce attorney might be adequate.  This is kind of like someone who visits the doctor’s office with a common cold or the flu.  The nurse can take their temperature, give them some Sudafed, and send them on their way with instructions to eat lots of chicken soup.

But, what if the person doesn’t really have a common cold, but has instead had a mild heart attack.  Mild heart attack symptoms can mimick flu symptoms.  In that case, you really do want to be checked out and diagnosed by a medical doctor.  

Usually people who get divorced have been married at least a few years.  They have intertwined finances, they own property together, often they have a lot of debt, they typically have retirement assets, and more often than not they have minor children.   In this factual stew, there are a lot of significant issues that can be overlooked by someone who is trying to work a “flat-rate” divorce.

Here’s the answer: if you are looking for a divorce attorney, you should meet personally with at least three attorneys and get a feel for them.  Ask them how many of their cases settle and how many go to trial.  Ask them what law school they went to.  Ask them about their caseload.  And, most importantly, try to get a sense for how they might handle your case.  You can also check with the Minnesota Lawyer’s Professional Responsibility Board to see whether the attorney has had complaints filed against them, and whether they have attorney malpractice insurance.

Of course, nothing can ultimately guarantee a result.  But, it helps if you have good information before you make a decision.

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MN Divorce and Attorney’s Fees

Often in a Minnesota divorce proceeding, one spouse works while the other spouse takes care of the children and the home.  Often, the spouse who works has access to, and control over, the income that comes into the family.  Sometimes when one of the spouses begins to talk about divorce, the spouse with control over the income will start keeping the income for himself or herself.  This can be a problem for the non-working spouse.

In a Minnesota divorce proceeding, regardless of whether the case goes to trial, both spouses need the benefit of  legal advice from their own attorneys.  It is a huge mistake for a party to think they do not need an attorney, simply because they and their spouse agree on everything.  If a party does not know what they are entitled to, they do not know what they are giving up. 

One attorney cannot represent or give legal advice to both spouses, because this would create a conflict of interest.  Too often, one spouse will accept the other spouse’s attorney’s claim that things have to be resolved a certain way.  This problem is exacerbated when that spouse does not have access to the family income and cannot afford to hire an attorney.

Minnesota divorce law contains a provision that can require one spouse to contribute to the attorney’s fees of the other spouse.  The theory is that money earned during the marriage is marital or family money.  One spouse has no greater entitlement to the family money, just because he or she happened to earn it. 

If you are the spouse who does not have access to the money, you should demand that your spouse provide you with sufficient funds to retain your own attorney.  If your spouse refuses, you should make the same demand to your spouse’s attorney.  If the spouses attorney refuses to advise his or her client to provide you with attorney’s fees, you should bring a formal request before the court, asking for an award of temporary attorney’s fees so that you can, in good faith, assert your interests in the divorce proceeding.  I do this on behalf of clients fairly often.

If you have questions about this or any other topic, contact me at (952) 270-7700.

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MN Divorce and Bankruptcy

Minnesota Divorce and Bankruptcy: Often people who are contemplating a divorce are also contemplating bankruptcy.  Marriage relationships can deteriorate quickly when there is significantfinancial pressure.  In this circumstance, bankruptcy can be a reasonable option.

If you are considering bankruptcy at the same time you are considering divorce, you need to consult with both a bankruptcy attorney and a divorce attorney.  And, your spouse and you should not use the same bankruptcy attorney, nor should you use the same divorce attorney.  Your interests are not the same.

In Minnesota, it is a violation of the rules of ethics governing attorneys for an attorney to represent both parties to a divorce when children are involved.  While it is technically not a violation for an attorney to represent both parties to a divorce when no children are involved, this is not a good idea for the parties or for the attorney, and I strongly recommend against it.

One notion that can confuse couples going through bankrutpcy is that the definition of the marital estate that is provided by Minnesota divorce law does not exist if a divorce is not pending.  Here’s an example: in Minnesota, a spouse has an interest in real property owned by his or her wife or husband, even if the spouse is not shown on title as an owner.   However–this “marital interest” comes into place only when a divorce proceeding has been started (or possibly when the property is sold).  In a Minnesota divorce proceeding, who’s name happens to appear on title to property does not mean very much.  In a bankruptcy proceeding, the name on title can be very significant.

Also, in Minnesota divorces the court will allocate responsibility for payment of debt to one spouse or the other.  If a bankruptcy is looming, the spouses may want to consider an agreement that either or both of them can discharge the debt in bankruptcy.  Without that agreement, a former spouse can make it difficult for a party to discharge certain debt in a Chapter 7 bankruptcy proceeding. 

Another issue that comes up: often one spouse will obtain credit in the name of the other spouse, without that spouse’s knowledge or consent.  In a case like this, the attorney for the spouse who may be facing unknown debts should conduct some formal discovery to comple the other spouse to disclose all debt obligations that he or she may have incurred in the name of the client. 

For more information about Minnesota divorce, feel free to contact me at (952) 270-7700.

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401(k) Plans and Financial Emergency

People who get divorced often have 401(k) retirement plans.  The funds in a 401(k) plan are “qualified” funds.  This means that the income tax on these funds, and income tax on the interest or gain realized by these funds, has not yet been paid.  The income tax is paid later, as the funds are withdrawn from the account.  The withdrawal usually occurs after retirement, when the person taking the funds is in a lower tax bracket. 

Typically, funds cannot be removed from a 401(k) plan prior to retirement.  Employers often give loans which are secured by 401(k) plans, but these are loans.  It is not a withdrawal from the plan.

At divorce, the assets in a 401(k) plan can be allocated between the parties.  The court does this with an order called a “Qualified Domestic Relations Order.”  While language in a QDRO can be included in the divorce Judgment and Decree, usually it is contained in a separate order, entered after the Judgment and Decree is entered.  This is not a requirement, but it is common practice. 

A QDRO is essentially an order that tells the plan  administrator to establish a new account in the name of the non-participating spouse.  The QDRO tells the plan administrator to transfer an amount of money into the name of the non-participating spouse (that is, the spouse who does not work for that employer).

Usually, the non-participating spouse can direct that his or her portion of the 401(k) asset be rolled over into an Individual Retirement Account.  This is a non-taxable event.  Again, the tax will be paid when the money is withdrawn, usually during retirement.

However, often a person will withdraw funds from an IRA before retirement.  This is a taxable event, and it is also subject to a penalty.  In addition to paying federal and state income taxes, the spouse also pays a 10% penalty.   Depending on one’s tax bracket, almost half of the IRA withdrawal could be paid to the Internal Revenue Service and the MN Department of Revenue in taxes or penalties.  So, this is not a particuarly good deal.

There is a little know provision of the Internal Revenue Code that allows the party receiving the transfer of some of the 401(k) asset to withdraw cash without paying the 10% penalty.  The withdrawal has to be made within 60 days of the divorce, and there has to be a financial emergency.  Of course, the income tax on the withdrawal does have to be paid.  That cannot be avoided.  But, with proper drafting, the 10% penalty can be avoided.

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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 Extra-Marital Affairs

Fairly often I am asked whether one spouse’s extra-marital affair has an impact on a divorce proceeding.  The answer is “it depends.”

First, let me say that I have great empathy for a spouse who realizes that he or she has been cheated on.  This knowledge can be devastating.  Many people go to marriage counseling to try to restore the relationship, but often the damage done is irreversible.  In fact, when one spouse “overlooks” the fact that the other spouse has cheated, that spouse could unwittingly be teaching the cheating spouse that it is “okay” to cheat.  I am familiar with cases where one spouse gets caught and begs for forgiveness.  The other spouse forgives, they resume their “marriage,” only for the other spouse to find new evidence that the cheating spouse is still cheating.

Generally speaking, the fact of the extra-marital affair, in and of itself, is irrelevant to a divorce in Minnesota.  Minnesota is a “no fault” divorce state, which means that you do not have to prove that a spouse is “at fault” before you can get divorced.  All you need to tell the court is that there has been an irretrievable breakdown of the marriage, and the court will grant the divorce.

However, the extra-marital affair is relevant if the cheating spouse spent marital money on the affair.  I am aware of spouses who have established secret checking accounts, cashed in retirement assets, and gone into significant credit card debt in order to carry on an illicit sexual relationship that their wife or husband does not know about.  In these cases, the wronged spouse has the right to be reimbursed for the money spent on the affair. 

The extra-marital affair is also relevant if the person the cheating spouse is seeing could have a negative impact on the parties’ children.  I am aware of cases where a spouse cheats with someone who is a domestic abuser, an alcoholic, or a criminal.  A person like this should probably not have unfettered contact with the parties’ children.  I once had a case where I had to obtain a court order preventing all contact between one spouse’s significant other and the parties’ children.  I was successful in doing this, even though the spouse had moved in with the significant other.  As long as the children were around, the significant other (who was a domestic abuser and a criminal) had to stay away from the cheating spouse’s home.

If you have any questions about this or any other Minnesota divorce issue, feel free to call me at (952) 270-7700.

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MN Divorce and Guardian ad litems

In contested Minnesota divorce cases, a guardian ad litem is a person who is appointed by the court to represent the interests of children in a divorce proceeding.  Typically, the guardian ad litem does not perform a custody evaluation or parenting time evaluation.  However, he or she will participate in the process, appear at court proceedings, and indicate his or her opinion about the best interests of the children to the court.

Usually guardian ad litems are not attorneys and they are not psychologists or licensed social workers.  Many people who go through a divorce where custody is contested believe that the guardian ad litem has too much power.  They believe that a guardian ad litem can form an erroneous or flawed opinion based largely upon first impressions. They believe that once a guardian ad litem forms an opinion, they are unlikely to consider credible evidence that contradicts their opinion.

This belief is born out by research.  A very good book on this topic is “Mistakes Were Made (But Not By Me),” written by Carol Tavris and Elliot Aronson.  One of the conclusions of this book, supported by research, is that once people form an opinion, they tend to overlook contrary evidence.  Once an opinion is formed, the person engages in a process of self-justification, mostly looking for evidence to prove they are right.  I highly recommend “Mistakes Were Made (But Not By Me)” to people who are going through a divorce.  It can give great insight into the thought processes of the individuals involved.

In light of this issue, there are several steps that people who will contest custody should consider taking.  The first is to get a child into counseling with a qualified, neutral therapist.  By “qualified,” I mean a licensed psychologist or psychaitrist.  I do not mean a minister, priest, social worker, or family friend.  If the child has a good relationship with his or her psychologist, the psychologist can have input that can either influence or inform the opinion of the guardian ad litem.

Secondly, people should fully understand the temporary relief process, and they should have an attorney who knows how to present a credible and powerful story to the court.  You only get one chance to make a first impression, and my experience is that the terms of a Temporary Order that is issued after a temporary relief hearing will have a significant impact on how the case evolves.

One final note: if you are consdering these steps, you need to take them sooner rather than later.  If the status quo is favorable to you, delay helps.  If the status quo is unfavorable to you, delay hurts.

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

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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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Happy New Year

Hi Everyone–

Today I don’t have any particularly profound comments about divorce in Minnesota.  I want to wish my friends, followers and clients a Happy New Year.  If you are one of my clients, you need to know that no matter how difficult your personal situation is at the moment, things do get better.  I’ve gone through it myself and I can say this from personal experience.

If you have been following my blog and have particular topics that you would like to suggest, e-mail me and I will consider it.  I cannot give advice that applies a specific analysis of the law to your particular facts in a blog post.  If you want that, you need to hire me as your attorney.  But, I can probably give you enough general information to help you get a better perspective.

So, Happy New Year to all!

Dan Fiskum

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MN Legal Separation and MN Divorce

Occasionally I am asked about the difference between a legal separation and a divorce.  As always, my comments on this blog pertain to Minnesota law only.  Though Minnesota family law is often similar to family law in other states, as often it is not.  There is no federal “family law,” and there very few federal appellate cases that pertain to family law issues.

In Minnesota, a divorce ends a marriage.  A divorce decree terminates the marriage.  If the parties have children, the divorce decree will say who gets custody, who gets parenting time and in what amount, who pays child support, and how much child support is paid.  The divorce decree will also say who pays alimony, if any, and who gets what property.  It will also assign responsibility for debts to one party or the other, or to both parties.

In Minnesota, a legal separation does not terminate a marriage.  A decree of legal separation essentially states that the parties are separated.  Then, it goes on to say, on a temporary basis, who has temporary custody of the children, who pays temporary child support, and how much temporary child support is paid.  It also says who pays temporary alimony, if any, and, on a temporary basis, who gets to temporarily use the property.  It also says who, on a temporary basis only, has to pay which debts.

The key word here is “temporary.”  A legal separation is not a final dissolution of a marriage.  It is temporary.

In Minnesota, a proceeding for legal separation cannot be “converted” into a divorce proceeding.  These are two distinctly different proceedings.  If you first file for legal separation, then decide to get divorced, the attorney needs to prepare new pleadings for the divorce.  A new court file is opened, with a different court file number.  You might have a different judge.  You will need to pay the first court filing fee of $400 for the legal separation, and you will need to pay a second court filing fee of $400 for the divorce proceeding.

Often, people who seek a legal separation do so because they realize they cannot live together, but for religious or philosophical reasons they do not want to get divorced.  A legal separation does take cooperation between the parties, because if one party decides that he or she wants to get divorced (instead of getting a legal separation) the other party has no legal basis for opposing the divorce.  It just takes one person to say that there has been an ‘irretrievable breakdown” in the marriage relationship, and the court will grant the divorce over the other party’s objection.

If you want to know more about the difference between legal separation and divorce in Minnesota, feel free to call me at (952) 270-7700.

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MN Divorce and Child Alienation

As a divorce attorney, one of the things that I find most troubling is a parent who alienates the children from the other parent as a form of retaliation.  Sometimes this alienation is deliberate.  A parent wants to get even with the other parent so they tell the children bad things about that parent.  Sometimes the parent alienates a child from the other parent without knowing he or she is doing it.  I’ve seen quite a few “victim” parents who have no idea that their behavior will have a permanent negative impact on their children.

In my experience, child alientation in the divorce process is far more common than most people think.  Recently, the results of a study of the impact of divorce on children in Boston, Massachussets, was discussed on National Public Radio.  The conclusion was that divorce negatively impacts children.  In my view, it is often not the divorce per se that negatively impacts the children, but it is the behavior of a parent who either subtly, or not so subtly, implants negative ideas and beliefs about the other parent into the minds of their children.

This can occur many ways:

A parent can show a child the divorce pleadings.  A parent can turn to a child for emotional support, telling them how sad, scared and depressed they are.  A parent can tell the child that the other parent is not paying enough money to support that parent or the child.  A parent can quibble about whether the other parent shows up for parenting time a few minutes early or a few minutes late.  The list goes on and on.

Of course, the alienating parent has all sorts of ways to justify this behavior in his or her mind.  She will say that the children need to know “the truth,” as if there were only one “truth” to the divorce (and it just so happens that the alienating parent knows what it is).  The parent will say they just “happened” to leave the pleadings on the dining room table where the child just “happened” to pick it up and read it.

Parents who rely on their children for emotional support are turning their children into adults.  This is wrong.  Children have the right to be children.  Children should not have to be the emotional support or emotional sounding board for their parents.  Children’s minds are not adequately developed to do this.  A child should not have to know how depressed his or her parent is.  Children should not have to listen to their parents argue about parenting time or the sufficiency of alimony or child support payments. 

To those parents who are emotionally distraught and want to act out emotionally in front of the children, I say “suck it up.”  I understand that divorce can be a miserable process to go through, but you owe it to your children to keep them out of the middle. 

There are two things an attorney needs to do when dealing with an opposing party who is alienating the children.   The first step to go to court early and seek the appropriate legal relief.  This is very important.  The longer the alienating behavior goes on before it is addressed by the court, the greater the negative impact on the children.  The second thing to do is to immediately get the child or children into therapy with a psychologist who has experience in both child alienation syndrome and forensic psychology.  There are several that I recommend when discussing this issue with clients.

If you have questions about this or any other topic on the Fiskum Law blog, feel free to contact me at (952) 270-7700.

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What Is Discovery In Minnesota Divorce?

In Minnesota, a divorce proceeding is a lawsuit, similar to just about any other district court proceeding.  Minnesota divorce procedures are governed by the Minnesota Rules of Civil Procedure, which are court rules that regulate all legal proceedings in Minnesota courts.  Additionally, there are other, more specific rules pertaining to divorce proceedings that are set forth in the Minnesota Rules of General Practice. 

In Minnesota court proceedings, including divorce, each party is entititled to obtain any and all information necessary to prove their case to the court.  There are some exceptions (for example, communications between an attorney and client are subject to privilege), but generally speaking each side is entitled to any and all information and documents that either might be relevant, or that might lead to the discovery of admissible evidence.

What are some things a party may need to know?  A party may need to know about the other party’s income, their assets, their debts, their employment statuts, their medical status, etc.  Sometimes a party can obtain this information informally.  Sometimes they cannot.  

As an attorney, I often prepare formal requests for discovery.  I can serve written Interrogatories on a party or the party’s attorney.  Interrogatories are written questions that a party is required to answer in writing, under oath.  I will use Interrogatories to obtain basic information about bank accounts, employment history, assets, debts and other information that I need.

I can serve a written Request for Production of Documents.  This requires the opposing party to provide copies of any documents that I ask for, unless they are subject to privilege or unless there is another objection that is allowed under the rules.  I use a Request for Production of Documents to obtain copies of checking and savings account statements, check book ledgers, tax returns (both personal and business) bills, paycheck stubs, bonus check stubs, information about health insurance coverage, information about pension benefits, 401(k) plans, IRA accounts, brokerage and investment accounts, businesses owned by the opposing party, and other documents.

Sometimes I will take an opposing party’s deposition.  A deposition is a formal proceeding that usually occurs in an attorney’s office.  When I take a deposition, I serve notice on the other side requiring them to appear at my office at a particular day and time.  I hire a court reporter.  I convene the deposition and I ask the opposing party questions under oath.  The court reporter makes a written transcript of the questions and answers.  The transcript can be admissible at a court trial.

Sometimes there are third parties who have information.  Sometimes I will serve a subpoena on a bank, requiring a bank officer to appear and produce copies of account records.  Sometimes I will serve a subpoena on someone who has information important to a claim about child custody.

There are other ways to obtain information.  Feel free to call me at (952) 270-7700 for more information.

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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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The So-Called $99 Divorce is Probably a Scam

Its no secret that the government is running low on money these days.  The court system (which is one of the three branches of government) is running low on money too.  Recently, Minnesota Chief Justice Eric J. Magnuson gave an interivew that was published in the Minneapolis Star and Tribune, in which he commented openly on the financial crisis facing Minnesota courts.  Since, technically speaking, Chief Justice Eric J. Magnuson is my boss, I will just observe that his comments were right on.  I believe he presented the case for our court system very eloquently.

So, over the past several years court fees have been increasing.  If the future resembles the past, court fees will continue to increase.

Currently, it costs $400 to file a divorce petition in a Minnesota district court.  Some counties charge slightly higher, depending upon the amount of the surcharge for the county law library.  If each party appears in the proceeding, each party has to pay their own filing fee of $400.

It costs $100 to bring a motion for temporary relief (or to file any other kind of motion) in family court.  This is in addition to the $400 court filing fee.  Again, each party that appears in the motion proceeding has to pay the $100 filing fee.

It costs $25 to file a document by fax.  Yep, $25, even for a one page document.  Sometimes, because of time deadlines, it is necessary to file by fax.  If the fax is more than 50 pages, it costs another $25.

If the court requires a custody evaluation, this can cost quite a bit.  In the past, courts had internal court services workers who would perform custody evaluations.  Generally speaking, the courts no longer offer this service because of the cost.  So, custody evaluations are often done by professional psychologists or sometimes professional social workers.  The cost of a custody evaluation typically starts at about $5,000.  This would be an inexpensive evaluation.

So, when you see ads that advertise a $99 divorce in Minnesota, you can figure they are a scam.  It is not possible to get divorced in Minnesota for $99, when the court filing fee is $400.  For $99, all they really give you is a set of forms that you can actually get for free from the Minnesota Supreme Court at http://www.mncourts.gov/default.aspx?page=513&category=55.

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How To Deal With Jerks

This may be hard to believe, but when you are involved in the practice of family law for any period of time, you will run into your share of jerks.  Often, these are opposing counsel — men and women — who believe that the best way to accomplish something is to be either insulting or passive aggressive.  As often as not, they are compensating for their own lack of knowledge or their sense of inferiority.  Sometimes the jerk is the opposing party.  Sometimes the jerk is my client.

I don’t want my client to be a jerk to his or her spouse.  If the jerk is my client, I figure out a way to communicate to them that the process will go more smoothly if they treat their spouse with some amount of respect.  This usually works.

If the jerk is the other party, there’s not much I can do about it.  As an attorney, I am not allowed to communicate directly with an opposing party who is represented.  But, I give my client plenty of advice about how to deal with their spouse who is acting like a jerk.

If the jerk is the opposing attorney, there is quite a bit I can do about it.

Make no mistake–jerks are bullies.  And again, the jerk / bully can be a man or it can be a woman.  Being a bully is an equal opportunity personality trait.  I do not like bullies.  Long ago, on the playground in grade school, I learned that the best way to deal with a bully is to fight back.  Bullies really are cowards, when it gets down to it.

Of course, now that I am a lawyer, I fight back differently.  Usually bullies try to do their bullying in a setting where they cannot be found out.  And, usually this is in the context of a telephone call.  So, if an attorney starts acting like a jerk and tries to bully me in a telephone call, I very calmly explain to them what they are doing, what their strategy is, and why that strategy will not work.  It will not work because I understand all the cheap bullying tricks and I know how to respond.  If I communicate to the other attorney, politely, that they are wasting their breath, usually they stop acting like a jerk.

But, some attorneys continue to act like a jerk.  When they do, I explain to them that they have lost the privilege of talking to me on the telephone.  You see, there is no rule that says an attorney has to answer the phone when ever it rings.  If the attorney persists in being a jerk, I tell him or her not to call me any more, and to put anything they have to say to me in writing.  That way, I have something to bring to the Minnesota Lawyer’s Board of Professional Responsibility if the situation warrants it.  And when the jerk attorney calls, I tell my receptionist to tell them that I will not take their call and to put whatever they have to say to me in a letter.  This makes the jerk attorney’s life more difficult, and it makes his or her client pay more for attorney’s fees.  It doesn’t pay to hire an attorney who is a jerk.

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What is Early Neutral Evaluation?

Early Neutral Evaluations occur mostly in Hennepin County, Minnesota.  Many people do not know that the procedure for getting divorced in Minnesota varies from county to county.  In Minnesota, the court system is organized into “districts.”  There are 10 judicial  districts in Minnesota.  Some judicial districts are comprised of several individual county courts.  Other judicial districts are quite large and are comprised of only one county.  For example, the First Judicial District is situated south of Minneapolis and St. Paul, and consists of many counties, including Dakota, Scott, and Carver.  The Fourth Judicial District on the other hand, consists only of Hennepin County.  This is because Hennepin County is quite large.

The rules for getting divorced in Hennepin County are somewhat different than the rules in other counties.  You can find some of these rules in the Minnesota Rules of Civil Procedure.  Oddly enough, other Hennepin County rules are not published, and are almost like “private” rules known only to the judges and the attorneys who practice frequently in the county.  For example, in Hennepin County, there is a standing order signed by Judge Swenson (a judge who used to be the chief family law judge) that says that you cannot serve formal discovery until after the Initial Case Management Conference.  Surprisingly, many lawyers who practice in Hennepin County are unaware of this rule, and occasionally I have to remind them.  This rule is not followed in other judicial districts.  And, depending on the facts and issues of the case, this rule can make a difference.

There is a combined mediation and evaulation process that is somwhat unique to Hennepin County– the Early Neutral Evaluation, or ENE.  The Early Neutral Evaluation process can be used when the parties to a divorce do not agree about either custody or parenting time.  The ENE process is optional. 

Basically, the parties and their attorneys meet with two (2) mediators / evaluators who are appointed by the court.  One is always a man, the other is always a woman.  The meeting might last for a half hour or it might last for two or three hours.  If an agreement is not reached, the substance of the ENE discussions are confidential and may not be communicated to the court.

The parties and their attorneys present their arguments to the ENE  mediators / evaluators. They mediators / evaluators first see whether they can mediate an agreement between the parties.  If they are not successful, they give their “evaluation.”   They tell each parties how they believe the judge will ultimately decid the case, if the case goes to trial.  The point of this is to enourage the  parties to reach an agreement. 

Probably from the court’s perspective, the ENE process is a success.  It may result in fewer cases going to trial.  This is important to the court because there are literally thousands of divorce cases filed each year and there are about 13 or so judicial officers on the Hennepin County family law bench.  If you do the math, it becomes pretty apparent that it is not possible for all cases to go to trial.

From the perspective of a person getting divorced, the ENE process can be “fair” to one spouse and “unfair” to the other spouse.  This is because it is an unnatural interference with the bargaining process.  When an evaluator tells both spouses that spouse A will get sole custody and spouse B will get only 25% parenting time, it makes it less likely that in the subsequent bargaining process, spouse A will change his or her position.  Spouse A will only become more intransegent, more difficult to bargain with.

In other words, a divorce isn’t over until its over.  The negotiation process can take many months and there can be a lot of bargaining and give and take that goes on.  And, the parties can always avoid going to trial if they want to (and they usually do).  But, give one spouse an “official” opinion from a non-attorney, non-judge employee of the court, and the bargaining process is unfairly skewed in favor of one party.

I am concerned that the ENE process could eventually undermine the perceived value of judges.  It am also concerned that it could be seen as undermining the perceived impartiality of the court.  I believe strongly in the perception of value in judical opinions and the perception of impartiality of the court.  US Supreme Court Chief Justice John Marshall understood this concept in his landmark decision Marbury vs. Madison, 5 US 137 (1803), and I am afraid that the full value of this case is lost upon the current generation of legal practitioners.  My own experience is that people tend to obey court orders that they can respect, even if they disagree with the order.

Here’s the thing–there is a lot of nuance to divorce law.  There is a lot of nuance to the facts of each divorce case.  My own experience, practicing divorce law in Minnesota for 18 years, is that no two cases are the same.  There might be similarities, but no two cases are the same.  And, regardless of what one published case might say about a subject, I can probably find another published case that says something different.

A judge has been to law school, has practiced law, has familiarity with family law, and has presided over family law cases as a judge.  And, a judge has a sense of fairness and fair play.  A judge also has the benefit of being screened for the position (in the case of an appointment by the governor) or being elected by citizens of the county.  The ENE process could be seen as metaphorically showing that none of that matters.  That all one needs is a bachelor’s degree in social work, one can spend 15 minutes listening to one party’s story and then give an opinion that has as much value as a judicial opinion.  I am not sure I agree with this perspective. 

I have also noticed that some ENE evaluators are ignorant about important aspects of divorce law.  Of course, this is understandable because many ENE evaluators are not attorneys and in fact are prohibited by law from actually practicing law. 

Moreover, the ENE process seems to be predicated upon the unspoken premise that judges are predictable.  In other words, a social worker who has never practiced law, and who has probably never appeared in court, is going to “predict” what the judge will do.  That prediction is built into the evaluator’s advice.  Essentially the evaluator “tells” the parties that the judge will “probably” do this, so you should stop negotiating now and Spouse B should just give up and give Spouse A what he or she wants.  In my experience, “predictability” can be equated with “prejudice.”  Is someone who makes the same kind of decision all the time “predictable” in a good way, or “prejudiced” in a bad way?

Of course, if the facts were the same in every case, then predictability is good.  But, ask yourself, how many relationships do you know of where the “facts” of the relationship are identical with other relationships that you know about?  People have different numbers of children, some are boys and some are girls.  Sometimes the mother is the bread winner and sometimes the father is the bread winner.  Children are different ages and some are mature enough to express a preference about which parent they want to spend most time with.  Some children do well in school, some do not.  Some adolescent boys get along well with Mommy’s new live-in boyfriend, some do not.  Sometimes one parent wants to move–not necessarily out of state, but even a move from South Minneapolis to Blaine is significant.

I am in favor of any process that makes it more likely that parties will settle a case fairly.  But, like all attorneys, I represent only one party to a case, and what I really want is for a case to be settled fairly for the party I represent.  It is my job to bring that about.   There is a difference between a settlement and a fair settlement.  To that end, my strong preference is to work with an unbiased mediator who will not provide his or her own “evaluation,” but instead work hard to get the parties to reach a fair agreement.

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What If You Do Not Serve An Answer?

In Minnesota, a divorce Summons contains a formal notice that the person being served with the Summons and Petition has thirty (30) days in which to serve an Answer.  What happens if you do not serve an Answer?  The answer is simple: you lose. 

An “Answer” is a formal pleading that is similar to the Petition.  A letter stating your objections to the relief requested in the Petition is not an Answer.  Neither is a telephone call to your spouse’s attorney.  An Answer is a formal pleading that is filed with the court.  If you do not serve a formal Answer within thirty (30) days of the date you were served with the divorce Summons and Petition, your spouse’s attorney can go to court without telling you.  He or she can ask for anything (again, without telling you) and he or she will probably receive an Order granting whatever it is they ask for. 

The result can be a disaster for you.  Your spouse can get all of the property.  Your spouse can get custody of the kids with little or no parenting time going to you.  Your spouse can get an Order requiring you to pay exhoribant and unfair amounts for spousal and family support.  It is very difficult to overturn a default Order.  If you snooze, generally speaking the court will not care why.  If you do not serve an Answer, you lose.

Recently I dealt with an unscrupulous Minnesota divorce attorney.  He (along with an attorney colleague) represented a family member (a mistake), and the attorney was as bitter about the divorce as his client.  He and the other attorney had the divorce petition served and then (apparently) instructed the client to “negotiate” with the spouse for thirty (30) days.  The spouse was not very savvy.  She thought that as long as she and her spouse were negotiating, everything was fine.  But, after thirty (30) days, the unscrupulous Minnesota divorce attorneys went to court and obtained a default divorce Judgment and Decree giving their client everything–including the house and all of the $100,000.00 plus retirement assets.  The spouse who failed to answer (because she thought she was negotiating with her spouse) got nothing.  When she realized what had happened, she called my office.  She was frantic.

I immediately went into action.  In cases like this, even a few days delay can prove fatal.  I contacted the court and scheduled an emergency hearing to try to vacate the divorce Judgment and Decree that had been entered without my client’s knowledge or consent.  I filed our pleadings as soon as possible.  The court held a hearing and when it became clear what had happened, the court threw out most of the provisions of the divorce Judgment and Decree.  I was then able to push for an equal division of assets.  Eventually, my client did get an equal division of assets.  However, the cost of the proceeding to reopen the case could have been avoided.  And, there was no guarantee that we would have won.  When the judge heard my argument to reopen, it was pretty clear what the other side had done.  But, not all cases are quite so clear.

The moral of this story is when you are served with a divorce Summons and Petition in Minnesota, do not wait.  Do not stick it in a pile of papers on your desk, to be looked at in a few weeks.  Do not assume your spouse is “nice” and will cut you slack.  Instead, call an attorney and take all appropriate steps to protect your future.

As always, you should feel free to call Fiskum Law at (952) 270-7700 with any questions.

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What is “No Fault” Divorce in Minnesota

Minnesota is a “no fault” divorce state.  To the best of my knowledge, most, if not all states in the United States are no fault divorce states.

What this means is that in a Minnesota divorce proceeding, one does not have to prove that the other spouse is at fault before a divorce can be granted.  One does not have to prove that a spouse did something “wrong.”

Historically, one was not always entitled to a divorce.  One had to first prove to the court that one’s spouse did something wrong–in other words, that the spouse was “at fault.”  Typically, the person argued that the spouse had committed adultery, was a habitual inebriate, or had engaged in physical or mental cruelty.  If one could prove one of these claims to the satisfaction of the court, then one could obtain a divorce.

Today this is no longer the case.  In a Minnesota Petition for Dissolution of Marriage, all one needs to say is that there has been an “irretrievable breakdown” of the marriage relationship.  Generally speaking, whether the other spouse has committed adultery or is a habitual drunk is irrelevant to the divorce.  You do not need a reason or a justification for the divorce.  Just the fact that you want to get divorced is sufficient reason.

However, there are Minnesota divorce cases where adultery or habitual drunkenness is a factor.  For example, if a spouse has spent a significant amount of marital funds on his or her girlfriend or boyfriend, these funds are recoverable in the divorce proceeding.  If a spouse has a new boyfriend or girlfriend, this can be relevant to the issue of child custody and parenting time.  Usually it is not, but if the new boyfriend or girlfriend is prone towards emotional or physical bullying or violence, or drunkenness, this can impact the children and it is relevant.

If you have questions about this, or any other Minnesota divorce issues, call Fiskum Law at (952) 270-7700.

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How Long Does It Take To Get Divorced in MN?

I am occasionally asked how long it takes to get divorced in Minnesota.  The answer is “It depends.”  It can take anywhere from about 6 weeks to a year and a half or more, depending upon whether the parties can cooperate, and depending upon the issues involved.

First, in order to begin a divorce proceeding in Minnesota, one of the spouses has to have lived in Minnesota for the previous 6 months.  If you or your spouse have not yet resided in Minnesota for 6 months, you cannot start a divorce proceeding.  If you have recently moved,  once you have lived in Minnesota for 6 months you can start a divorce proceeding in a Minnesota court.  Typically, a divorce proceeding takes place in the county in which one of the spouses resides.  (Note that this is not an absolute requirement.  Very rarely there may be a reason to start a family court proceeding in a county other than that in which one of the parties resides.)

In Minnesota, a divorce proceeding is commenced by personal service of a Summons and Petition for Dissolution of Marriage.  “Personal service” means tht the Summons and Petition for Dissolution of Marriage are personally handed to the opposing party by someone, just like on TV.  The person doing the serving cannot be a party to the proceeding and it should not be a child.  It is usually either a deputy sheriff or a professional process server.  The opposing party may agree to waive personal service by signing an Admission of Service.

It takes time for parties to reach an agreement.  This is true even when both parties reach an agreement on the “important” issues.  Usually there are issues that parties do not think about when they negotiate an agreement by themselves.  The Marital Termination Agreements that my office prepares can be 10 pzges or longer.  If parties reach an agreement quickly, the divorce process moves quickly.

Technically, courts are not supposed to grant divorces until at least 30 days has lapsed since the date of service of the Summons and Petition for Dissolution of Marriage.  And, if a party is in default, after the 30 days has lapsed there is an additional 20 day waiting requirment.  But, if the parties have an agreement, they should expect the process to take at least six weeks, minimum.  However, in Minnesota counties with large populations (Hennepin County, Ramsey County, Anoka County, for example) it can take a lot longer for a divorce to be concluded.  This is because the courts in these counties have a high number of divorce cases spread out between a small number of judicial officers.  It just takes longer.

If the parties do not have an agreement early on in the proceeding, the mediation process can take several months.  If the parties go to trial, it would be rare for a trial to occur sooner than nine months after the Summons and Petition for Dissolution of Marriage have been served.

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Modifying Divorce Decrees in Minnesota

In Minnesota, it is possible to modify certain parts of a divorce decree after the divorce is final. 

A Minnesota divorce becomes “final” when the judge has signed the divorce Judgment and Decree (the full title of the document is “Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree) and the clerk of court has entered the Judgment and Decree into the court record.  A divorce is not final until the clerk of court has taken this last step.  In larger counties in Minneosta, this often does not happen until several days after the judge has signed off on the Judgment and Decree.

Once the divorce judgment is entered, either party has 60 days to file an appeal with the Minnesota Court of Appeals.  If 60 days has lapsed with no appeal filed, the the divorce Judgment and Decree is final and can no longer be appealed.

However, certain aspects of the divorce Judgment and Decree can always be reopened and modified, provided this is justified by new circumstances that evolve after the divorce is final.  Generally speaking, those portions of the divorce Judgment and Decree pertaining to property division remain final and cannot be reopened or modified.  There is an exception if it can be shown that a spouse engaged in fraud. 

But, those portions of the divorce Judgment and Decree pertaining to child custody, parenting time, child support, and alimony or spousal maintenance can be reopened and modified.  In order to do this, one generally has to show that there has been a change of circumstances that makes the terms of the current Judgment and Decree unreasonable and unfair.  Or, in the case of child custody and parenting time, one has to show that a modification of the custody and parenting time provisions would be in the child’s best interest.  There specific things one needs to prove in order to do this, and there are timing requirements and legal standards that one needs to meet. 

If you need to know more about this subject, feel free to call Fiskum Law at (952) 270-7700 for a free consultation.

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Child Support in Minnesota

People frequently ask me how the Minnesota child support laws work.  There is a new Minnesota child support law, because the old law was modified significantly in 2007.  Now, child support is calculated using the gross incomes of both parents.  But, that’s not the most significant change.  The most significant change is that the amount of child support one pays (or that one receives) depends upon parenting time.  In my opinion, this aspect of the law resulted in an unintended consequence that can prove fincially disastrous to some parents.

Now parties to a divorce proceeding tend to fight about parenting time, because under the new Minnesota child support statute, the amount of parenting time has a very significant economic impact.  And of course, it really doesn’t matter how much parenting time a parent actually exercises in “real life”–the only thing that matters is what the court order says. 

Here’s what I mean: suppose parent A has gross monthly income of $5,000.  Suppose parent B has gross monthly income of $3,000.  Suppose they have two children.  Suppose that, historically, parent B has done all of the actual parenting time.  Parent B gets the kids up in the morning and gets them off to school.  Parent B buys the kids clothing.  Parent B reads to the kids and tucks them into bed at night.  Parent B cooks the meals and does the cleaning.  And suppose that, for whatever reason, Parent A does not want to pay (much) child support.

Here’s the deal: if Parent A has the kind of parenting time that one would expect under these facts (between 25% and 35% of the time) then Parent A would pay child support to parent B in the amount of $921.  Parent A’s basic support obligation is actually $1,047 per month, but Parent A receives a “parenting expense” adjustment of $126 per month.  This seems fair enough.

But, assume that Parent A lobbies really hard for 45% parenting time.  And assume that Parent A manages to convice the court that this makes sense, even though historically Parent A has not been an equal parent.  With 45% parenting time, Parent A only has to pay $304 per month.  Parent A gets a parenting expense adjustment of $743.

Of coures, Parent A can often convince a court that Parent A should get at least 45% parenting time.  And, once 45% parenting time is awarded, Parent A’s child support obligation is established at $304 per month.  After that, Parent A can continue to be the same kind of parent that Parent A was before the divorce.  Parent A can call Parent B and say “I’m too busy to take care fo the kids–you take them.”  Parent A can do this as often as Parent A wants.  Of course, Parent B will take care of the kids because historically this is something that Parent B always has done.  And Parent A can refuse to pay for half of the kids expenses–half of their clothing, ice time if they play hockey, school lunches. 

It doesn’t take a legal genius to see that Parent B is at a financial disadvantage.

The problem with the new Minnesota child support statute is that it makes it easier for Parent A to avoid supporting the family after the divorce.  Now, I am not saying that all “Parent A”s are like this.  But, the new Minnesota child support statute is deficient because it makes too much rest upon the designation of the amount of parenting time.  It was intended to take the “fight” out of child support by making the amount of support a computer calculation that took into account gross income only.  However, all it did was shift the “fight” to a new terrain.  Now people fight about the designation of percentage of parenting time.

There are legal strategies that both Parent A and Parent B should follow when confronted with this situation.  If you want to know more, call Fiskum Law at (952) 270-7700.

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How Do I Find Assets In Minnesota Divorce Proceedings?

When you get divorced in Minnesota, the Court will divide marital assets and debts.  The statute requires that this be done “equitably.”  Equitably usually means “equally,” but not necessarily.  As long as the asset division is fairly equal, Court consider that to be close enough. 

Many people ask about how they can find assets that a spouse may be hiding.  There are several ways to do this.

First, I advise people to make copies of various documents.  Ideally, this should be done in the several months leading up to a divorce.  These documents include tax returns, paycheck stubs, check book ledgers, account statements, and credit card statements.  Often one can find relevant information about hidden assetes in these records.  For example, there may be a transfer made from a known account to an unknown account that is reflected on an account statement.  A tax return may contain an entry for earned interest that does not appear on any known account statements.

In Minnesota, the Rules of Civil Procedure apply to divorce proceedings.  The rules provide for something called “discovery,” which is the formal process of compelling an opposing party to provide information and documentation.  One can require the party to answer, under oath, written interrogatories (written questions) and these questions usually include questions about income, assets and debts.  One can require the party to respond to a request for production of documents, stating the type of documents sought.  The other side then has 30 days to produce copies of the documents.  One can also take the deposition of the opposing party, and one can take the deposition of anyone else who might have information that is relevant to the divorce.  One can take the deposition of a representative of a bank, for example, in order to obtain copies of bank statements or canceled checks.  Depending upon what information you need, there is probably a way to obtain it.

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Parenting Time for Unmarried Fathers

In Minnesota, an unmarried father has no parental rights unless these have been established by a court order.  The mother of the child has the common law right to physical and legal custody because she gave birth to her child.  When the mother is married to the father, then the father has common law physical and legal custody rights, too.  But, when the mother is not married to the father, the father has no legal rights to his child.  None.

This is true even when the father signs a Recognition of Parentage at the hospital and is named as the “father” on the child’s birth certificate.  It is also true even when the child has the father’s last name. 

The mother can go to court and get an order requiring the father to pay child support.  Even then, the father has no parental rights.   No court order, no parental rights for Dad.

In relationships where the mother and father get along, the fact that the father has no legal rights might not be a problem.  But, in a relationship where the mother and father do not get along, this can be a problem.  The father is not legally entitled to share in any kind of custody, and he is not legally entitled to parenting time. 

The only option for the father is to start a legal action to establish paternity and parental rights in court.  In Minnesota this is called a paternity suit.  The specifics of how to do this are going to depend on whether the father signed a Recognition of Parentage.  If he did, the case is pleaded one way.  If he did not, the case is pleaded another way.  The mother can also start a paternity suit.  This may be necessary if the mother wants child support and the father did not sign a Recognition of Parentage at the hospital.

I believe that it is important for both unmarried fathers and unmarried mothers to establish parental rights.  This is important, even when the mother and father get along.  In fact, it is much easier to do when the mother and father get along because a stipulation can be drafted and submitted to and approved by the court, with very minimal court inovlvement.

If there is a question about whether a particular unmarried man is the father of a child, then either the mother or father can request genetic DNA testing.  Generally, genetic DNA testing costs about $500 or so.  If the alleged father is not the real father, genetic DNA testing will prove this conclusively.  If the alleged father is the father, genetic DNA testing will indicate this, with a calculation showing that the odds of anyone else being the father are extraordinarily low (maybe 1 in 4 billion or so).

The law relating to unmarried parents is complex.  If you have questions about paternity in Minnesota, feel free to call Fiskum Law at (952) 270-7700.

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What is a Temporary Relief Hearing?

Often it can take several months to complete the divorce process.  If there are disputes about custody and parenting time, disputes about the value of assets, or disputes about how much alimony or spousal maintenance should be paid, it can take several months to resolve these.  In the meantime, the parties need to continue living their lives.

In Minnesota, a divorce court can enter a “temporary order” that is in effect until the divorce is concluded.  A temporary order can award temporary custody, temporary parenting time, temporary child support, temporary occupancy of the home, temporary spousal maintenance and it can contain other provisions. 

Generally, as soon as the divorce has been started, a spouse can bring a motion for temporary relief.  In some Minnesota counties, the motion can be heard within a few weeks.  In other counties, it takes longer because of the backlog of cases.

My opinion is that a hearing for temporary relief is very important and should be taken very seriously.  I believe that often the temporary order can have a precedential impact upon subsequent proceedings.  It can signal to the other side what they are likely to achieve if the case goes to trial and make them re-consider whether it is worth the financial and emotional cost.  A temporary order can influence other professionals who may be working on the case.  And, in my opinion, a temporary order can have an impact on how a judge views the case as it goes to trial.  (Keep in mind that in most counties, more than one judge can be involved in the same divorce case.)

For all of these reasons, an order for temporary relief is important.

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Holiday Parenting Time in MN

This is the time of year that many divorced parents begin to have problems with holiday parenting time.  Often times, divorce decrees are ambiguous about holiday parenting time.  A divorce decree might say that parenting time is “reasonable and liberal,” without saying anything about a specific parenting time schedule.  Or a divorce decree might say that the parents have “alternating holidays” with the children, without stating specific holidays and without stating specific pick up and drop off times.

Many parents are able to cooperate and reach an informal agreement about parenting time.  Many parents cannot.  If your ex-spouse is difficult to cooperate with, you should begin thinking about holiday parenting time now.  If the divorce decree is not specific about holiday parenting time and your ex-spouse is difficult to deal with, you should take the following steps:

1.  Try to get an agreement in writing.  This can include a series of e-mails back and forth that, when read together, confirm what you and your ex-spouse have agreed that the holiday parenting schedule will be.  You can initiate this process by sending a written proposal by e-mail, asking that your ex-spouse either approve it or propose some reasonable changes.  Eventually, many, if not most, parents can reach an agreement this way.  The important thing is to have an agreement that is evidenced by a series of e-mails or other written form of communication.

2.  If you cannot reach an agreement, you should propose in writing that you and your spouse obtain the services of a parenting time consultant.  A parenting time consultant is a professional (usually a psychologist or an attorney) who will meet with you and your ex-spouse and try to work out a parenting time agreement.  You have to pay for a parenting time consultant.  It is important that you at least try to get your ex-spouse to go to a parenting time consultant, because if you cannot, the court will want to know this.

In my experience, either step 1 or steps 1 and 2 above usually work.

3.  If steps 1 and 2 above do not work, you probably need to return to court.  Depending upon the circumstances of your divorce, this could possibly be done without a formal hearing. Or, a formal hearing might be required.  An experienced attorney might be able to resolve the issue in a telephone conference call with the judge and the attorney for your ex-spouse.  Or, the attorney may need to schedule a brief court appearance.

Keep in mind that if you can show that you tried to act reasonably, that you sent a written request for a reasonable holiday parenting time schedule (I emphasize the word reasonable– you need to be fair) and that your ex-spouse declined, and that you then offered to try to resolve the matter out of court with a parenting time consultant, you have a reasonable claim for your attorney’s fees incurred in connection with the court appearance.

In Minnesota, attorney’s fees can be awarded to one spouse when the other spouse unreasonably contributes to the length or expense of a proceeding.  This does not mean that attorney’s fees are always awarded, but the possibility that this can occur gives you some leverage in negotiating with your spouse.

As always, the law when applied to the specific facts of your situation can produce a different result.  This blog is not intended as legal advice.  It is best to consult with an attorney by telephone or in person to obtain a specific analysis of the law as it applies to your facts.

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Do Divorce Attorneys Use Negotiating “Tricks”?

Do divorce attorneys use negotiating tricks?  Yes. Not all of them, but a lot of them. After all, they went to law school, they are attorneys, and they want to get the best deal for their client in any (legal) way they can.

Many attorneys who use “positional bargaining” tactics use various “tricks” to try to get their way. The problem is, if the other attorney has some negotiating skill and savvy, these tricks do not work very well.

For example, a well-known ploy is the “one more thing” trick. Imagine that you and your attorney have been in intense negotiations with your spouse and your spouse’s attorney for several hours. You’ve finally hammered out what appears to be a reasonable agreement. As you are just about ready to close the deal, your spouses attorney says “Oh, we want one more thing.”

That “one more thing” can be anything. It could be that your spouse wants “a little more” parenting time. It could be that he or she wants “a little more” money for alimony or child support. It could be that he or she wants the brand new 80 inch plasma TV that you just purchased with your bonus.

In extreme cases, I have seen attorneys and their clients renege on signing a Marital Termination Agreement after it has been fully written up, and even though it accurately reflects the terms of the agreement that the parties reached in mediation. The other side wants “one more thing.” This kind of comportment can be considered to be unethical, and it certainly shows bad faith, but that does not stop attorneys from engaging in it.

Your spouse’s attorney knows that you have just spent a lot of time and effort to get to an agreement. The attorney knows that you have a lot invested in the negotiating process. The attorney knows that you have an emotional interest in getting done with the divorce and avoiding trial. The attorney believes that, instead of looking at the total balance sheet with the “one more thing” added and realizing that it is now unfair, you will just say “okay, I give up–take one more thing.”

You do not have to say this. You can evaluate the “one more thing” and decide how important that issue is to you. Usually its important to you and your spouse knows this, which is why it was held up as “one more thing,” for him or her to grab at the end of the negotiations. If your attorney is experienced, he or she will have held something in reserve. Often, this is not so much the “one more thing” that you want as it is the possibility of proceeding with the process if negotiations fail. Or, your attorney will know how to say “No” in a way that communicates to your spouse that if he or she insists on getting “one more thing” it will end up costing her more than it is worth.

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How Does Divorce Mediation Work In Minnesota?

Mediation is a process in which the parties to a divorce and their attorneys meet with a neutral third party in an attempt to resolve their disagreements, without going to trial.  The neutral third party should be a trained mediator.  Usually she is a divorce attorney or other professional who has experience with divorces, along with training in how to mediate disputes.

My opinion is that mediation is a good thing.  While there are exceptions, it is usually better for parties to resolve their differences through negotiation than it is for the government to make the decision for them.  (That’s what happens when a case goes to trial–the government, a judge, decides the disputed issues.)

It is also true that sometimes trials are necessary.  But, even in those cases, when it becomes apparent to the other side that you are ready and willing to go to trial, they other side agrees to meet you half way.

Mediation is not the best first step to take because it is expensive.  The best first step is to see whether the attorneys and parties can resolve the issues on their own, taking into account what each party wants, and what each party can reasonably expect, given the law as it applies to the facts of their case.  But, if that does not work, mediation then makes a lot of sense.

In Hennepin County and a few other counties in Minnesota, there is a process called “Early Neutral Evaluation” and one called “Financial Early Neutral Evaluation.”  In these processes, the court refers the parties to neutral evaluators who try to help the parties reach an agreement.  If the parties cannot agree, the neutral evaluators tell the parties what they perceive as the strengths and weaknesses of their respective cases.  Early Neutral Evaluation is used for custody and parenting time disagreements.  Financial Early Neutral Evaluation is used for financial disputes–disputes about things like alimony, child support, division of assets and division of debts.

This is just an overview of the process.  It is actually quite a bit more complex.  Getting good results in mediation requires that one be prepared before hand with the facts, and that one have an attorney who has a good sense of diplomacy and good negotiating skills.  As always, if you have questions about this or other Minnesota divorce issues, you can call Fiskum Law at (952) 270-7700.

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What About “Flat Fee” Divorces?

Generally speaking, many of the so-called “flat fee” divorce offers from attorneys or para-legal services are scams.  Offering to do a job for a flat fee, especially when the process has not even started, is a lot like saying “You can hire me to fill out the forms for you, but if there are any problems you have to pay me more.”

The fact is, divorce forms are available on-line.  You can get some good ones here: http://www.mncourts.gov.  Just click on the link on the left-hand side of the page that says “court forms” and follow it until you get to the page that has divorce forms.  These forms are free.  You should not pay anyone for forms, especially online.  The chances are very good that forms that you pay for online will not work in Minnesota.  On the other hand, the forms made available by the Minnesota Supreme Court are free, and they will work in Minnesota.  Attorneys who offer reduced rates and “flat-fee” specials do not want you to know about these forms, which again, are available for free.

The fact is, when people hire me, they hire me for my legal advice.  My legal advice saves my clients lots of money and it prevent lots of problems.  People do not hire me to fill out a form.  And really, when you hire an attorney for a reduced rate for a so-called “uncontested divorce,” that’s usually all the attorney does.   Do you think they would charge you a flat rate so they can do more work for you?  Or do you think they charge a flat rate so they can do less work?  These are not difficult questions.

Be especially wary of scams that advertise an “uncontested divorce” for $99 or some bargain rate.  In Minnnesota, the court filing fee (the fee you pay to file your Petition and other documents with the court) is $400.  (In some counties this filing fee is slightly higher.)  The fee to bring a motion for temporary relief is another $100.  The fee to fax a document to the court is $25.  You do not need a degree in mathmatics to realize that when someone advertises a $99 divorce, the math does not work.

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Does It Matter Who Starts the Divorce Proceeding?

A skilled divorce attorney understands the concept of “perceived credility.”  Maximizing the effect of “perceived credibility” for a client is one of the most important things an attorney does.

Often I am asked whether it makes any difference who initiates the divorce proceeding.  My own opinion is that, often times, who goes first does matter.  This has to do with what many attorneys call the “halo effect.”  I call it “perceived credibility.”

In addition to the “facts,” human beings make decisions based on a variety of factors, including various biases, preconceived ideas, emotion and, importantly, perceived credibility.  In contested divorce cases, parties often appear in court early in the process to request an order for temporary relief.  That is, one or the other party brings a formal motion or request for a temporary order that will remain in place during the several months that the divorce proceeding is pending.  A temporary order can award temporary custody and parenting time to one of the parties.  It can award temporary child support, temporary alimony (alimony is called “spousal maintenance” in Minnesota divorce courts) temporary occupancy of the home, and it can grant other provisions.  These provisions can remain in effect for a month or six months or longer, until the divorce process is concluded.  For obvious reasons, presenting a compelling case at a temporary relief hearing is very important.

In Minnesota, a hearing for a temporary order is brief, typically lasting no more than 15 or 20 minutes.  Prior to the hearing the attorneys submit formal written requests for relief (motions) and formal statements of facts signed by their client and other people (affidavits).  Usually the judicial officer will have read the motions and affidavits (the pleadings) submitted by the parties prior to the hearing.  Sometimes they do not, and sometimes they say this at the hearing itself. 

So, a judicial officer, who may or may not have reviewed the written pleadings, will have two parties and their attorneys appear before him or her for a few minutes, and then make a decision that could have a life altering impact for one or both parties.   Many people believe that there is a “halo effect” that postively impacts the person who starts the divorce action and who brings a formal motion for temporary relief.  In fact, logicians have identified a particular kind of logical fallacy which they call “poisioning the well.”  This means that the person who gets to the decision maker first with his or her story tends to have a bit more credibility.

Many human beings make decisions from their “gut,” and then justify them with legal rationales later.   Effective divorce advocacy requires an understanding of how human beings make decisions.   It is a process of presenting the best facts and best legal argument, based on the facts.  And, in order to maximize the potential for success, attention to perceived credibility is essential.

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When Should I Tell My Spouse?

One question I am often asked is when a spouse should discuss his or her intention to divorce with the other spouse.  My response is usually that “it depends.” 

It is important for couples to try to cooperate during and after the divorce process, especially if they have children.  My experience is that most couples can do this.  Divorce is always an unpleasant experience.  If spouses can cooperate before, during and after the process, everyone will benefit.

If you can sit down with your spouse and discuss in general terms your expectations regarding the divorce, this is good.  You should not reach a complete agreement without consulting with an attorney however, because an unknowledgable spouse can make concessions that he or she would not have to make.  You cannot bargain fairly and effectively for your rights if you do not know what they are.

The law relating to divorce and the division of assets and debts is complex.  There are nuances to dividing property, retirement, and importantly, debts that most non-lawyers do not know.  Before reaching a final agreement, even if it is a “rough draft” agreement, you should talk with an attorney.  Its hard to negotiate for changes to an agreement once you have told a spouse that you will agree to something.

Generally, I tell people that it is okay to discuss a divorce with a spouse after they have consulted with an attorney an have an idea of what their rights are.  However, there are marriages in which couples cannot communicate fairly or effectively.  Often in these kinds of marriages, one should consider starting the formal divorce proceeding first and then discuss the outcome one would like to see.

There are marriages in which one spouse has a narcissistic personality disorder and, no matter what, insists on having his or her way.  There are marriages in which one spouse is a bully.  There are marriages in which one spouse is the victim of domestic abuse.  In these instances, talking beforehand about your expectations is seldom helpful and usually leads to conflict.  The conflict can be better managed if you are working with an attorney.

I am going to write about domestic abuse in greater detail in a future blog entry.  For now, I will just say that if you have been the victim of domestic abuse, you should seek the help of an attorney or other professional.  If your spouse strikes you or threatens to strike you, you should call 911 immediately.  You should also apply for a Domestic Abuse Order for Protection in the district court for the county where you live.

Domestic abuse includes actual physical violence, but it also includes assault (where no contact occurs) and threats of violence.  Sometimes people have difficulty admitting to themselves that their spouse is a domestic abuser.  But, violence is a crime, and one does not get a free pass just because he is married to the person he commits violence against.  More on this subject later.

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How to Prepare for Divorce

There are several important steps you should take when preparing for divorce. Ideally, you should take these steps before the divorce proceeding actually begins. These steps will save you money and will position you to achieve a more favorable outcome.  Its part of strategic divorce planning.

I will discuss various aspects of preparation in subsequent posts. In this post, I will talk about obtaining and safely storing financial records.

Usually one spouse has more responsibility for keeping and maintaining family financial records. If you are the spouse who does not do this, you could be at a disadvantage when it comes to divorce.   Before the divorce proceeding starts, you should obtain copies of the following kinds of documents:

1. Checking account records, including the checkbook ledgers, checking account statements, and canceled checks or check carbons;

2. Federal and state income tax returns for the past several years, plus all attachments and schedules, and all of the information that was used to prepare the returns;

3. Paycheck stubs, bonus check stubs, and year end W2 and 1099 statements;

4. Credit card statements;

5. Cell phone bills;

6. The deed or title to your homestead and any other real property and sale closing documents;

7. Receipts relating to the purchase of big-ticket items;

8. Loan statements;

9. Any other financial documents that might be important.

During a Minnesota divorce proceeding, there is a formal, legal way that an attorney can obtain copies of these documents. Its called “Discovery.” I will write more about that later.

There are two problems with discovery: 1. it can be expensive; and 2. its often difficult to get copies of documents that the other side has already destroyed. Some documents can be obtained directly from a third party. An example of this is a summary of your tax return, which can be obtained from the IRS. Some documents cannot be obtained from any source.  For example, a check book ledger is a good source of financial information, but once a spouse has destroyed it, its gone.

You should not obtain documents illegally. But, most couples keep their financial records in a place that is accessible to both parties. 

Even if you are not expecting a problem divorce, you should get copies of these documents.  Things change, and when an otherwise agreeable spouse realizes that you want (and are entitled to) a portion of his or her retirement savings, he or she might become less agreeable.  Put copies of these documents in a box and store them somewhere that your spouse cannot get at them. Maybe store them in the basement of your best friend’s house, so that you have them when you or your attorney needs them. Store them at your parent’s house or in a safe place where you work. Put them somewhere that your spouse cannot get at them and destroy them.

This simple step will save you time and money.

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What is an “Uncontested Divorce”?

An uncontested divorce is a divorce proceeding in which the parties agree on how to resolve all issues.  Instead of having a trial before a judge, the parties sign a written agreement. In Minnesota, this agreement is called a “Marital Termination Agreement.” Sometimes parties can reach an agreement right away. Sometimes parties may start out with a significant disagreement about one or more disputed issues, and these issues are resolved during the negotiation process.

Disputed issues can include child custody, child parenting time, the amount of child support that is paid, whether spousal maintenance (alimony) is paid to a spouse, which spouse gets the house, which spouse pays the debt, how the retirement assets should be divided, and there are many others.

It is important to realize that just because there are disputed issues at the beginning of the divorce process, this does not mean that eventually there will be a trial before a judge. There are several ways of resolving disputes and reaching a fair agreement, including negotiations between the attorneys, mediation with a neutral third party, valuations by a neutral expert, and recommendations by a qualified neutral.

As a Minnesota divorce attorney who has been practicing for more than 17 years, my experience is that even in a situation where parties have an agreement, it is helpful to have a skilled attorney involved. An attorney is usually aware of issues that an unrepresented party is not. More importantly, an attorney can negotiate more effectively for a person than that person can for himself or herself.

In future blog entrys, I am going to discuss contested divorces and uncontested divorces at greater length. In the meantime, you should feel free to call me or e-mail me with questions or concerns. You can call me at (952) 270-7700 and you can e-mail me at dan@fiskumlaw.com.

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