Right of First Refusal

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When separated co-parents establish the grounds rules for their parenting schedule, it is common to include a “right of first refusal.”  The right of first refusal allows an “off-duty” parent to care for the child(ren) during the other parent’s parenting time if the “on-duty” parent is gone for a while.  The “off-duty” parent is made aware, in advance, that the child will be in the care of a third party because of the “on-duty” parent’s absence, and given the opportunity to provide care instead of the third party.

The right of first refusal may apply to an overnight, or for a block of time, such as four (4), six (6) or eight (8) hours – whatever the parties agree to, or whatever is devised by the court or decision-maker.

One issue that often arises with the right of first refusal is the situation in which it applies to children’s spending time with grandparents or extended family.  If the ROFR is applied strictly in every situation, then the children would theoretically never have sleepovers at a friend’s house, or long visits with grandparents.  Conversely, a parent could circumvent the ROFR altogether if grandparents are deemed an exception to the ROFR rule, and grandparents live nearby.

Most commonly, the right of first refusal applies to avoid children being in the care of a babysitter when they could be with their other parent.

The Uncontested Divorce – Part 6 (Personal Property)

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For many couples, it is easy to resolve the issue of “stuff.”  Many items of personal property naturally “belong” to one party or the other, especially when each party is involved in different hobbies and leisure activities.  Moreover, many items of personal property are easily replaceable or duplicated, such as pots and pans, towels and linens, and small tools and appliances.

Also, if the couple is already living in separate residences, they have already established their separate sets of possessions.

However, disputes over personal property can become the sticking point if emotions run high.  If the divorce is bringing out the worst in the couple, and their conflict level, and if there are no children and no real estate to “fight over,” then arguing over unique furniture items or nostalgic memorabilia can cause problems.

The goal in an uncontested divorce is to be able to say when the final agreement is signed, that each party is awarded the items of personal property currently in his or her possession.  And for the parties to be able to abide by that.

The Uncontested Divorce – Part 5 (Real Estate)

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Most uncontested divorces involve no real estate.  If the parties own real estate, it is a potentially complicating factor.  In fact, my earlier proposition (in The Uncontested Divorce – Part 1) – that an uncontested divorce may involve the parties selling the marital home and equally dividing the proceeds – has potential complications.

Dividing the net proceeds equally requires ascertaining what comprises net proceeds.  In other words, what is subtracted from gross proceeds to arrive at net proceeds?  Perhaps it is as simple as the amount “Paid to Seller” at closing.  But perhaps it is not.  Is either party owed some recompense for paying the mortgage since the parties decided to terminate the marriage?  Were there (or will there be) any fix-up costs to prepare the house for sale?

So the primary proposition is solid.  If there is no real estate, it is more likely to be – and remain – an uncontested divorce.

The Uncontested Divorce – Part 4 (Spousal Maintenance)

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Most uncontested divorces are not long on duration.  Less time married means less time to accumulate assets, debts and stuff (not to mention children).  Therefore, there are less potential issues to cause disputes if the marriage ends.  Conversely, most contested divorces involve long-term marriages; the long time spent together can make the break-up complicated and difficult.

Certainly there are case which buck this trend.  A couple married for decades may manage to part amicably, including amicable terms for their divorce.  And a couple married for a very short time may still have assets, debts or very young children to fight over.

Spousal maintenance (a/k/a alimony) is perhaps the most difficult issue in marriage dissolutions.  The variation, case by case, is wild and wide.  Property settlements tend to involve some semblance of an equal, or equitable, division of assets and/or debts.  Child support is often based on a statutory formula.  But spousal maintenance is subject to the court’s wide discretion based upon many statutory factors, and a lot of subjective judgment.

Cases in which neither party owes spousal maintenance most often involve three types of cases.  One, a short-term marriage.  Two, a break-up between two people whose earnings are pretty similar.  Or three, a divorce in which neither party earns a high enough income to have the ability to provide financial support to the other.

In order for a case to be truly uncontested, there needs to be no need for the divorce decree to provide spousal maintenance.  If there is the need to provide for spousal maintenance, then the parties need to address the tax consequences, the duration, whether the amount will step down over time, and various other issues.  It simply complicates things for one party to provide spousal support to the other party after the marriage is over.

The fact that there needs to be spousal maintenance does not mean that the couple’s divorce will be inevitably long and painful.  But it does rule out the prospect of proceeding with an uncontested divorce.

 

The Uncontested Divorce – Part 3 (Child Support)

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A divorce case involving minor children is less likely to be uncontested that a case involving no minor children.  As mentioned in an earlier post, as it pertains to the issue of child support, a case cannot be uncontested unless (1) there are no minor children; or (2) the parties are in agreement that no child support shall be paid.

In Minnesota, child support is based upon statutory guidelines.  The parties can agree (or the court can decide) to adopt the guideline amount, or to deviate upwards or downwards.  One might say that the issue of child support could be uncontested by simply adopting the statutory guideline amount of support.  The problem with that hypothesis is that the calculation of guideline support requires the input of the parents’ respective incomes.  If one of the parties is unemployed, it may be necessary to impute a reasonable level of income.  (But maybe not.)  If someone is self-employed, there is no simple answer to “What is your gross monthly income?”  Someone may have bonus income, or work on commission.

Even if the parties agree on an amount of support, there are complicating factors, such as how support gets modified if circumstances change, whether the paying parent needs also to contribute to other expenses of the children (and which expenses, and how much), and what happens when the oldest child turns eighteen.

The point is, unless both parties have sufficient income, and neither party needs to receive child support, the case cannot be considered truly uncontested.

There is also an additional concern if the parties do agree that no child support shall be paid.  That is the parents’ ability to be flexible and fair regarding how the children’s expenses get paid on a day-to-day, week-to-week, or monthly basis.  This will not necessarily prevent the parties from proceeding with their divorce case on an uncontested basis.  But later on, after the case is done, if they do not operate with principles of flexibility and fairness, it is only a matter of time before they have a contested dispute on their hands.

The Uncontested Divorce – Part 2 (Children)

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Children

As mentioned in Part One, if the parties in a marriage dissolution are not childless (or child-free, as some people say), then either one of the parents has to have literally no demands to make pertaining to the parenting plan; or both parents need to be extremely flexible and to respect the other parent’s time and relationship with the child(ren).

I am unable to recall an actual case that provides an anecdotal example of the uncontested divorce in which on parent has literally no demands.  The more common scenario is the situation where both parents have flexibility and mutual respect.  In these cases, oftentimes the children are teenagers, or at least age nine or ten.  By the time the children are this age, the divorcing parents may have well-established ground rules for parenting, and common expectations of the children’s habits and behaviors.  If the parents communicate well through their breakup, and they both have the aforementioned spirit of flexibility and respect, they may be able to proceed with the co-parenting aspects of a divorce in a truly uncontested manner.

This is not to say that all is lost if the parties hit a snag.  Most couples with children do, even in the most amicable divorces.  But we are talking here about cases that begin, and end, as uncontested cases – cases that do not require mediation, evaluation or negotiation.  If the children are young, or if the parties have complicated schedules that require a lot of planning and coordination, it may simply not be possible to consider the case as an uncontested case from start to finish.

Many couples with children end up with a co-parenting agreement.  Many of those couples begin with the belief that their case will be uncontested.  But the reality is that only in rare instances are parents able to complete their marriage dissolution without some negotiation, and/or the involvement of a neutral professional, to arrive at a workable arrangement.

The Uncontested Divorce – Part 1

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When someone calls a lawyer to proceed with an uncontested divorce, unfortunately they are often not correct in identifying the case as uncontested.  As in, an uncontested case, from start to finish.  Commonly, the person’s description is based upon the couple having not yet discussed the terms of the divorce, and the person’s assumption (and hope) that the terms of the divorce will come together smoothly.

The most common mischaracterization of an uncontested divorce comes from someone having no intention of “fighting” with the other parent about the children, and that same person expecting that the other parent will refrain from “fighting” as well.  But most mischaracterized “uncontested” divorces involve that same general situation regarding one or more issues: the belief that by going into the action without a hot issue, ready for a fight, that the case will be uncontested.

This is not to say that a non-uncontested case cannot become an uncontested case during the course of the action.  That is what happens when even complex or high-conflict cases settle out of court.

Here is an outline of the requirements of a true, uncontested divorce:

Children

*There are no minor children; or

*If there is a minor child, one of the parents has literally no demands to make pertaining to the parenting plan; or

*Both parents are willing to be extremely flexible and neither parent desires to have precedence over the other parent’s time and relationship with the child(ren).

Child Support

*There are no minor children; or

*The parties are in agreement that no child support shall be paid.

Spousal Maintenance

*The parties are in agreement that no spousal maintenance shall be paid.

Real Estate

*There is no real estate, or the marital homestead will be sold, and the net proceeds equally divided.

Personal Property

*Each party is keeping the stuff currently in their possession, and no items need to change hands.

Bank Accounts

*Bank accounts are already separated and bank account funds are already divided.

Retirement Accounts

*There are no retirement accounts, or each party is keeping any retirement assets in his or her name.

Motor Vehicles

*Each party gets one car, and the parties agree that this is a wash.

Debts

*There are no debts in both parties’ names, and each party will pay the debts in his or her name individually.

Attorney’s Fees

*Each party pays his or her own attorney’s fees.

 

 

In the Matter of Oberg v. Bradley

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(Filed August 3, 2015) (Court of Appeals)

Respondent Mother obtained an Order for Protection against Appellant Father from the district court on behalf of the parties’ minor son after the district court admitted the son’s out-of-court statements. Appellant sought review for violating his right to due process because he did not have adequate notice that Respondent would offer the out-of-court statements.

The Court of Appeals affirmed, ruling that the standard of proof for an order for protection is a preponderance of evidence. The Court of Appeals observed that the domestic abuse statute does not specify a standard of proof, but the preponderance-of-evidence standard is implied, since that standard is specifically required to modify or vacate an order for protection. The Court of Appeals rejected Appellant’s claim that the out-of-court statements should not have been admitted and that, absent the statements, the evidence was insufficient for issuance of the order.

In the Matter of Dakota County and Floding v. Gillespie

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(Filed July 22, 2015) (Supreme Court)

Appellant Mother, who was receiving child support from Respondent Father, began receiving Social Security dependent benefits upon Respondent’s retirement. The child support magistrate granted Respondent’s motion for modification, offsetting his obligation by the dependent benefits received. The district court clarified the magistrate order to expressly provide for benefits already received by Appellant to be applied to Respondent’s prospective child support obligation. The Court of Appeals affirmed, ruling that the application of past benefits to Respondent’s prospective obligation did not constitute a retroactive modification of child support, which is not authorized by the support statute, other than while a modification motion is pending.

The Supreme Court reversed, ruling that the subtraction of the dependent benefits is an integral part of the child support calculation, which means a dollar-for-dollar offset of the benefits is not necessarily accurate. Moreover, the statutes do not provide a provision for accommodating the commencement of Social Security benefits, so the offset must necessarily occur in conjunction with a modification under the applicable statutory provision.

There was a dissenting opinion emphasizing that the receipt of benefits (not a modification motion) is the essential triggering event for the subtraction of benefits that, under the statute, must occur. Therefore, the dissent would have affirmed the Court of Appeals ruling.

Possible Changes to Child Support Guidelines

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There are two bills that have been introduced in the Minnesota Legislature.  One would establish a permanent advisory committee on child support guidelines.

The other one is a bigger substantive change.  Child support would be calculated based on the income shares of the parents, like it is now.  But the parenting expense adjustment would be much more variable than the current statute.

Currently, there are only three parenting expense adjustments: one for cases in which parents share custody equally (or nearly equally); one for cases in which one of the parents has little or no parenting time with the child(red); and one for all other cases.

The new statute would create a graduated parenting expense adjustment based upon the specific parenting schedule.  The adjustment would be based on the number of overnights each parent is the on-duty parent over the course of the year.

I am concerned that the new statute will create a bigger issue for parents to dispute.  Many times separated parents argue over custodial time, not because of what is good for the children, but because of the impact is has on the amount of child support.  Under the current structure, this issue (to fight about) is only regarding whether the threshold for “nearly equal” parenting time has been met.  Under the new statute, that issue could be a bone of contention in many more instances, because any change to the number of overnights results in a change in the amount of child support.

The bill was to be heard in legislative committees this past week.  Watch this space.