The bill to legalize same sex marriage in Minnesota has passed the Minnesota House. The Minnesota Senate is expected to take the legislation up on its floor on Monday.
How quickly things change. Not too long ago, Minnesotans were asked to vote on a state constitutional amendment to ban gay marriage. That measure was defeated last November by popular vote. Now, the Minnesota legislature is taking up a bill to legalize same sex marriage, and it appears that the bill will reach the House floor for a vote tomorrow (May 9, 2013) and the Senate floor on Monday, May 13, 2013.
An important aspect of the bill is the repeal of Minnesota’s DOMA (Defense of Marriage Act) provision. Minnesota Statute Section 517.03, subd. 1(b) currently provides, “A marriage entered into by persons of the same sex, either under common law or statute, that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.” The bill in process in the legislature would remove the above-referenced DOMA provision from Minnesota law.
If the bill passes, it would set the stage for the dissolution of same sex marriages to be processed in essentially the same manner as the dissolution of other marriages. There will continue to be other proceedings necessary to address child custody, parenting time and parenting plans as they pertain to same sex spouses and co-parents, just as there have been for years other proceedings pertaining to stepparents, adoptive parents and other interested parties connected to child custody cases.
In addition to the District of Columbia, the states that already recognize same sex marriage are:
5. New Hampshire
6. New York
10. Rhode Island
If you are awarded a motor vehicle in a divorce, be sure to take care of the title.
If the title to the vehicle is solely in your name, you do not need to take further action.
If the title to the vehicle is in the other party’s name, the title must be transferred. You can do this by signing your name as “Buyer” in the transfer section of the title, and the other party signing their name as “Seller.”
If the title to the vehicle is in both parties’ names, the title must be transferred as well. You can do this by signing your name as “Buyer,” and both parties signing their names as “Sellers.”
If the title is missing, you may apply for a duplicate title from Driver and Vehicle Services through this link: http://www.dmv.org/mn-minnesota/replacing-a-lost-title.php.
Times are tough. Many families and individuals have struggled the past few years because home values have dropped and jobs are difficult to come by. Financial problems add to or are the cause of marital discord. Not surprisingly, when couples decide to divorce, many find the idea of hiring an attorney distasteful, if for no other reason than that it will be an additional financial cost. More and more divorcing parties decide to represent themselves during the divorce process. For some families, this makes good sense. If the issues are straightforward and you agree on all relevant terms, then you may be able to effectively fill out the paperwork and complete the process on your own. Minnesota makes all of the necessary forms available online here: http://www.mncourts.gov/selfhelp/?page=342.
Unfortunately, the issues are not always as straightforward as they seem and the agreement is not always as complete as it should be. We see two common situations in which parties have represented themselves during a divorce — or some portion of it — and have required the services of an attorney after the fact. One situation is when parties fill out the divorce paperwork on their own, but the Court refuses to sign off on it. Sometimes the Court tells the parties what is wrong with the paperwork, but it can be confusing to identify the problems and know how to fix them. Judges often suggest or strongly urge one or both parties to hire an attorney to review and revise the paperwork. The set-back can be frustrating.
The second common scenario presents an even tougher issue for unrepresented parties. Not uncommonly, self-represented parties will submit an agreement to the Court and it will be accepted and approved. If you are not aware of your rights at the time of the divorce, but then later realize that you have gotten an unfair deal, or are stuck in a difficult situation, it can be hard to go back and remedy the situation. Common pitfalls include issues with real estate, retirement account transfers, custody or parenting time agreements, and child support collection.
The difficult thing about property division issues is that property division is final upon entry of the divorce. If an attorney is involved with the drafting of the divorce agreement, the attorney can offer advice to protect you against common contingencies. For example, what if the house doesn’t sell? Or, what if you or your spouse are unable to refinance? Who will pay for unforeseen fees associated with a QDRO (the separate document that provides for both spouses to share in a retirement account)? While hindsight is 20/20, there is often little a party can do to remedy a property-related problem that has popped up after the divorce is final.
With the child-related issues like parenting time and child support, the Court always retains jurisdiction to revisit these issues if need be. However, the standard for changing the agreement can be quite high. For example, it may not be enough to realize after-the-fact that the parenting time schedule doesn’t work well for your child(ren). Unless the other parent agrees with you and you jointly undertake to change the schedule, it may remain “as is” unless you can show that it endangers the child. When it come to enforcement of child support, it is likely that you will be able to update the Court Order to promote enforcement of it, but it will cost you additional money to do that. If it were drafted correctly initially, that cost could be avoided.
For these reasons and more, we strongly recommend that anyone thinking about or starting the divorce process hire an attorney. At a minimum, it makes good sense to hire an attorney to either draft the agreement that you and your spouse have reached or to have the attorney review the paperwork that you and your spouse have filled out together. As they say “an ounce of prevention is worth a pound of cure.”
In July 2012, the Uniform Law Commission approved of the Uniform Deployed Parent Custody and Visitation Act, to address issues that arise when a family court matter involves a parent serving in the military. The Uniform Law Commission (ULC), established in 1892, is responsible for such Acts as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA). The ULC is also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL).
The purpose of the uniform laws promulgated by the ULC is to provide clarity and consistency among state laws. Most aspects of family law are legislated at the state level, not the federal level. So the same issues may be addressed very differently in different states. When the ULC approves of an Act, the laws that comprise the Act must be ratified by the various state legislatures. As each state passes a set of uniform laws, there may be slight variation in each state’s adoption of the Act. But there is a high level of consistency, state by state, that could not be attained without the ULC’s Acts.
The Uniform Deployed Parent Custody and Visitation Act (UDPCVA) contains common-sense provisions to avoid penalizing a deployed parent while also giving proper regard for the rights of the non-deployed parent, in carrying out what is in the best interests of the child(ren) involved. The main provisions of the Act address the devising and implementation of a temporary co-parenting arrangement in light of a parent’s deployment, including how to address the deployed parent’s transition back home after the deployment ends.
The UDPCVA may or may not be ratified by all fifty states, as UIFSA was in a period of approximately two years after it was introduced. But we can anticipate adoption of the Act in many states in the coming months.
Divorce can be a challenging process. After the initial difficult decision of whether to pursue a dissolution action, many parties wonder where to begin in sorting through the many pieces of the marital relationship. One helpful place to start is to realize that there are two main issues that apply to every divorce and two main additional issues that apply when the divorcing couple has minor or dependent children:
Almost every marital estate includes assets and debts. Both must be identified, disclosed, and divided equitably between the parties. Assets commonly include: the marital homestead, other real estate, stocks and bonds, retirement accounts, business interests, motor vehicles, and personal property (such as jewelry, electronics, home goods and furnishings, etc.). Debts commonly include: second mortgages, credit card balances, personal loans, lines of credit, student loans, and medical bills.
Whether a party intends to hire an attorney or proceed without one, it is helpful to write out the list of assets and debts with even a rough estimate of their values. Doing so allows the party and / or his or her attorney to conceptualize the marital estate and to begin to formulate potential options for a fair property settlement.
Spousal maintenance was formerly known as “alimony.” It is less commonly awarded now than it was in the past, but there are still plenty of situations in which spousal maintenance is appropriate. The two primary factors are the length of the marriage and the income disparity between the spouses.
If a party believes he or she may be entitled to spousal maintenance, it is helpful to begin by writing out a budget of his or her reasonable monthly living expenses. If the party is unable to meet his or her reasonable expenses, and the party’s spouse is able to contribute to them, then spousal maintenance may be appropriate.
If spousal maintenance is appropriate, it is also important to consider how long it should be paid from one spouse to the other. In a minority of cases, permanent or otherwise long-term spousal maintenance is necessary. In a majority of cases, parties agree or are ordered to exchange spousal maintenance for a limited amount of time. Sometimes the time frame includes a “step-down” approach whereby the amount of spousal maintenance decreases over time until it is no longer paid at all. It is also commonly tied to the spousal maintenance recipient’s ability to earn income, which may be expected to increase when enough time has passed for him or her to seek education or take other steps towards gainful employment.
One of the most important aspects of the spousal maintenance issue is whether the parties will agree to divest the Court of jurisdiction over the spousal maintenance issue after the divorce is final. If so, the parties’ agreement will include a Karon waiver, which prohibits the Court from modifying spousal maintenance in the future. If the parties have not agreed to a Karon waiver, then either party may petition the Court for a modification if the parties’ circumstances change.
Custody and Parenting Time
There are two types of custody: legal and physical. Legal custody relates to issues like religious upbringing, major medical decisions, and type of education. Parties often agree to share legal custody decisions and are awarded joint legal custody. In a minority of cases, sole legal custody for one parent is an appropriate resolution to this issue.
Physical custody relates to the day-to-day care of the child. Increasingly, the label of “joint physical custody” vs. “sole physical custody” has become far less meaningful than the parenting time schedule the parties are ordered to follow. Rather than focusing on the label of “joint” or “sole,” the better focus here is for a party to give serious thought to the co-parenting schedule that he or she believes is in the “best interests” of the child(ren).
Here are a few common schedules:
- The parties follow a 5-2-2-5 schedule where one parent takes Mondays and Tuesdays, the other parent takes Wednesdays and Thursdays, and the parties alternate weekends (Friday through Sunday).
- The parties follow a week-on / week-off schedule.
- One parent provides the primary residence for the child(ren) who see the other parent every other weekend and one or two nights per week.
- One parent provides the primary residence for the child(ren) who see the other parent on school breaks and for alternating holidays. This schedule is especially common when the parents do not reside in the same state.
Of course, where safety concerns or other serious issues are present, a shared custody arrangement like those described above may not be appropriate. In these cases, sole physical custody to one parent with limited visitation and / or supervised visitation by the other parent may be necessary.
Child support is often relatively straightforward. It is based on the parties’ relative incomes and the agreed-upon or court-ordered parenting time schedule. The Minnesota Child Support Guidelines Calculator is an excellent tool for practitioners and curious parties alike: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx It provides the basis for the child support numbers the parties will work with as they attempt to resolve the various pieces of the divorce.
The three types of child support considered in any child support award are:
1) Basic support which is paid from one parent to the other for the day-to-day necessities of the minor child(ren)
2) Medical support which divides the costs of medical insurance premiums and other out-of-pocket medical costs as between the parties
3) Childcare support which divides the costs of childcare as between the parties
Parties may agree to deviate from the Minnesota Child Support Guidelines, but to do so they must first acknowledge the Guidelines and then assert that it is in the best interests of the children to deviate from them.
The foregoing outline is a very general and very basic representation of the potential issues parties will face as part of the dissolution process. These issues are often challenging and complex. Any party faced with a pending divorce is well-adivsed to hire an attorney to assist him or her with the process. Skillful representation is often key to insuring a fair and efficient resolution. Contact the attorneys at Williams Divorce & Family Law today to see if our firm would be a good fit for you.
For the most part, parties involved in a divorce, custody, or parenting time dispute are required to attempt Alternative Dispute Resolution (ADR) prior to bringing their issue(s) to court. Because Rule 114 of the Minnesota General Rules of Practice allows parties to “create an ADR process” by agreement, in theory the possibilities are literally endless. In practice, however, most parties in Minnesota use one of two main, well-established processes: mediation and early neutral evaluation.
Mediation is the process by which both parties sit down with a neutral third party and attempt to reach resolution through negotiation. It is considered a “facilitative” process because, as Rule 114 points out, mediation is “[a] forum in which a neutral third party facilitates communication between parties to promote settlement.” While, by rule, “[a] mediator may not impose his or her own judgment on the issues for that of the parties,” different mediators have different styles. Some mediators are strongly facilitative and work only to improve communication between the parties without imposing judgment on the parties’ positions. Other mediators are strongly evaluative and provide an opinion on the parties’ positions in an effort to move the parties closer to resolution. Many mediators fall somewhere in between.
Social Early Neutral Evaluation (SENE) is a process by which the parties sit down with two evaluators, one male and one female, for a structured conversation regarding custody and/or parenting time issues. The evaluators generally begin by having a conversation with the petitioner (the person who started the case) and then the respondent. Both parties are present in the room when the evaluators hear from each party, and are encouraged to listen, but not to interrupt or interject. The evaluators ask questions, gather information, and ensure that each party has had an equal chance to be heard. After the allotted period of time, the evaluators leave to discuss the issues and return with a recommendation, which they present to the parties.
Financial Early Neutral Evaluation (FENE) deals with financial issues such as property division or spousal maintenance. Often there is only one evaluator in this process and the discussion may be less structured than it is in a SENE. Overall, however, the process is the same. The parties take turns speaking with the evaluator about the issues. The evaluator gathers the information he or she needs to make an informed recommendation regarding what he or she believes a court may do in a similar situation. The recommendation is then used to focus the parties’ negotiations.
While mediation and ENE are the most common types of ADR processes in Minnesota family law cases, there are a few other commonly used processes worth mentioning.
Arbitration allows each party to present his or her case to the neutral arbitrator who acts as a private judge. Unless the parties agree that the arbitration will be non-binding, the arbitrator’s decision will be binding upon the parties, although it can be appealed.
Mediation – Arbitration (Med-Arb) is a hybrid process by which the parties attempt to mediate the dispute, but if they are unable to resolve the issues through the facilitative process, the neutral will switch roles from mediator to arbitrator and will provide an evaluative decision on the issues.
Moderated Settlement Conferences most commonly occur in the middle or towards the end of the divorce process. One neutral facilitates negotiations between the parties. The negotiation takes place at the courthouse at a time when the judge is available to take the bench and allow the parties to read an agreement into the record or, in some cases, to offer the parties feedback during their negotiations.
There are many reasons one or both parties may choose to end an marriage. Not surprisingly, most of the time one or both of the parties points to the other’s behavior as the main reason the marriage cannot continue. Affairs, drug and alcohol dependency, addictive behaviors, intra-family violence, poor money management skills … the list is long and all of the items on it are legitimate causes or effects of a deteriorating relationship.
There is a disconnect, then, between the fact that these are very significant issues to parties going through a divorce, yet they have no legal significance when it comes to granting the divorce and dividing the parties’ property. Minnesota is one of the vast majority of states that does not consider “fault” at all when undertaking the business of separating households pursuant to a divorce. Certainly there are cases in which this provides an unfair outcome for a faultless party who nonetheless is required to bear an equal burden for his or her spouse’s wrongdoings. Yet, it is clearly the better option overall for the court system to set aside the issue of fault, to create a policy by which parties who are married to one another share equally in gains and losses until the time of the divorce and to ensure that an already arduous divorce process doesn’t further bog down the overburdened court system.
While “no fault” makes sense from a property perspective, there is one area of divorce and family law where “fault” is an important part of Minnesota’s jurisprudence. Custody and parenting time issues require the court to make a decision that is in the “best interests” of the child. To do this, the court must consider the ability of each parent to provide a safe and caring environment for the child. If one parent has a serious drug addiction problem, for example, that parent will likely not be well-suited for substantial custody and parenting time rights. On the other hand, simply because one parent had an affair doesn’t necessarily mean that he or she is in any way an unfit parent. In the limited setting of custody and parenting time, “fault” only plays a role if it affects a party’s ability to parent.
There is no way to foresee exactly how a divorce will unfold. Some divorces are very complex and the parties and their attorneys can anticipate at the outset that the road will be long and difficult. Other divorces are relatively simple and can be accomplished easily and quickly. Most divorces fall somewhere in between. Below are a few common scenarios and the processes that would typically accompany them.
1. Parties agree on all terms and have no children.
If the parties agree on all of the terms of their divorce, they may proceed by Joint Petition and Stipulated Decree. This document allows them to jointly bring the divorce action and expedites the divorce process. Minnesota provides pro se parties with all of the forms online that they would need to complete in order to file for divorce without an attorney.
Many parties find it helpful to hire an attorney to draft the Joint Petition and Stipulated Decree for them. Hiring an attorney often makes the process more efficient and ensures that the terms of the divorce are likely to be approved by the Court. An attorney cannot represent both parties in a divorce, even if the parties are on amicable terms and have a full agreement. One party can retain an attorney to draft the paperwork and the other can sign a Waiver of Counsel or can hire his or her own attorney if he or she has questions or concerns.
The attorney will draft the paperwork and provide it to the client for his or her review, before the paperwork is given to the opposing party for his or her review. When the paperwork has been signed by both parties in the presence of a notary, and signed by the drafting attorney, the attorney’s office will send it to the Court for administrative review. The Court will then review, sign, and file the Decree before it sends notice to the parties that the divorce has been granted. If the Court were to have any questions or concerns about the terms of the agreement or the documents as drafted, the Court would communicate these concerns with the parties and the attorney would revise the paperwork and would resend it to the Court.
2. Parties agree on all terms and have children.
The main difference between this scenario and the above is that, if there are children involved and one or both of the parties is unrepresented, the Court will require the parties to appear for a hearing before the judge signs off on the divorce. If both parties have attorneys, then they may submit the agreement for administrative review, as well.
3. Parties do not agree on all terms and have no children.
Whereas it is a viable option to file for divorce pro se when the parties agree on all terms, it is strongly advisable to hire an attorney in the event that the parties do not agree on all terms. Rather than jointly filing the Joint Petition and Stipulated Decree as described above, the process in a contested divorce is as follows.
The party who wishes to file for divorce must effect personal service of the Summons and Petition on the opposing party. The Summons and Petition put the opposing party on notice that a divorce action has commenced and gives that party thirty days in which to file an Answer. If the allotted time period has elapsed without an Answer, the party who filed for divorce can move the Court to grant the divorce by default.
In practice, if the opposing party inserts himself or herself into the proceeding and the parties have begun negotiations, an Answer may become somewhat of a formality. If negotiations appear fruitful, the parties through their attorneys may elect to attempt some form of Alternative Dispute Resolution (ADR) even before the case is filed. If, through these means or otherwise, the parties reach an agreement on all issues at this stage, then one attorney will draft a Stipulated Decree and, if it meets with the approval of both parties and both parties and attorneys sign off on it, will be submitted to the Court for administrative review.
When the Summons and Petition has been filed with the Court, either immediately or after negotiations have broken down, most Minnesota courts will schedule an Initial Case Management Conference (ICMC). This is an initial meeting with the judge, more informal than a typical court hearing, at which the parties inform the Court of the issues involved in the case and agree upon a means of ADR suitable to the issues. The parties then proceed to follow through with the ADR order and attempt to resolve the remaining issues in that manner.
If, at the beginning of the case, one party needs money from the other in order to meet his or her basic living expenses and an agreement is not forthcoming, that party may schedule a temporary motion at which the party argues for the relief he or she seeks. The other party may oppose the motion or otherwise propose a separate temporary solution. The Court will then issue an Order regarding the requested relief.
As the case proceeds, the Court will likely schedule a series of hearings to review the issues with the parties and to ensure that the case moves towards resolution. If, at one of these hearings, the parties do reach a resolution, they may read the agreement onto the record at which point it becomes an enforceable court order. When an agreement is read on the record, the parties will thereafter submit a written agreement to the Court, which recites the same terms, generally with additional specificity.
Ultimately, if the parties remain unable to resolve one or more issues through negotiation or ADR, their remedy is to go to trial on the issue(s). Family law trials are not before a jury, but rather are heard by a judge who becomes both the finder of fact and the finder of law. In every other respect the trial is identical to any other civil law trial with witnesses, exhibits, and arguments that each side uses to make his or her case. When the Court has made its decision, the decision is final and the parties are bound by it, unless it is overturned on appeal.
4. Parties do not agree on all terms and have children.
Divorcing parties with minor children will encounter the same processes described above. However, additional processes may come into play when parties are unable to agree on the issues of custody and parenting time. Certain ADR processes, such as Social Early Neutral Evaluation (SENE) focus exclusively on custody and parenting time issues. Other processes, such as mediation, easily accommodates such issues. When parties remain at an impasse despite these processes, the Court often orders a Custody Evaluation to be performed by a neutral third party who specializes in child development and family law issues. In certain situations, the Court may appoint a Guardian ad Litem to investigate and promote the best interests of the child. In other situations, the parties themselves may agree to use a parenting consultant to perform a custody evaluation and report back to the Court. The main purposes of these processes, no matter the differences among them, is for a neutral, qualified third party to assess the outcome that he or she believes is in the best interests of the child, and to report that information to the Court, so the Court can make an informed decision on the issue(s).