No Fault Divorce

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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.

Divorce Process in Minnesota

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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).

Joint Physical Custody – The 5/2/2/5 Schedule

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When parents share child custody with a 50-50 schedule, it is common for the schedule to be week-on, week-off – i.e., one week with one parent, the next week with the other parent, and so on. But not likely if a child custody professional is involved. Many parents agree to share custody by alternating weeks. But custody experts tend to disfavor that schedule, particularly for young children, and particularly during the school year.

Custody experts typically favor a schedule known as “5/2/2/5” One parent has Mondays and Tuesdays overnight. The other parent has Wednesdays and Thursdays overnight. The parents alternate the Friday-Saturday-Sunday overnights each week. The numbers add up to fourteen, because it constitutes a two-week (fourteen-day) rotation.

If you are the Wednesday-Thursday parent, you have Wednesday-Thursday-Friday-Saturday-Sunday one week (that’s the first 5) and Wednesday-Thursday the other week (that’s the second 2). The other parent has Monday-Tuesday the first week (that’s the first 2) and Friday-Saturday-Sunday-Monday-Tuesday the second week (that’s the second 5).

Here is a visual:





Common-Law Marriage in Minnesota

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Common-law marriage is a marriage in which there is no license issued by a governmental agency, there is no marriage certificate filed with the government, and there is no solemnization of the marriage in the presence of witnesses.  The title of this post is ironic, because Minnesota does not recognize common-law marriage.  The Minnesota legislature abolished common-law marriage in 1941.  However, Minnesota does recognize common-law marriages that were legal contracted outside of Minnesota.

Several states still recognize common-law marriage, but most states have either abolished or never recognized common-law marriage.  Generally, what defines a common-law marriage are (a) the intent to be husband and wife; (b) cohabitation; and (c) public recognition or declaration of being husband and wife.

The practical significance of Minnesota not recognizing common-law marriages is the fact that many unmarried couples live together, pool their resources, share expenses, and jointly incur debts.  This deprives the individuals who cohabit outside of marriage of certain rights, and shields them from certain obligations.  Couples who cohabit long-term, without entering into a legal marriage, should make informed and deliberate decisions about raising children together, co-owning real estate, jointly signing off on debts or mortgages, or accepting and/or refraining from employment.

Developments in Gay Divorce in Minnesota

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The latest development in gay divorce in Minnesota happened in probate court.  On August 1, a Hennepin County District Court judge upheld a probate court referee’s ruling that a surviving partner of a same-sex marriage was entitled to inherit the decedent partner’s assets.  The couple was married legally in California in 2008, moved to Minnesota in 2010, and the decedent passed away in 2011.

The court ruling depended on the Minnesota Uniform Probate Code, which does not prohibit inheritance by a same-sex partner, and the Minnesota Defense of Marriage Act, which recognizes same-sex marriages performed in other states.  The ruling also depended upon the disclaimer by the decedent’s parents of the decedent’s assets.  That is to say, had the decedent’s parents not disclaimed the assets, the assets would have gone to them because the decedent had no written will.

The Minnesota Defense of Marriage Act renders void in Minnesota any same-sex marriage solemnized in another state.  However, the court ruled that the legislative intent was to limit contractual rights, but not statutory rights.  The ruling lends support to the prospect that Minnesota courts can dissolve same-sex marriages, to the extent that doing so does not involve contractual rights.  Child custody, child support, spousal maintenance, marital property and non-marital property are statutory rights, not contractual rights.  So the probate court ruling suggests that these issues would be subject to the jurisdiction of the family court in a marriage dissolution.

Presumably, there will be cases in the near future that will continue to give shape to the developing landscape of gay marriage and divorce.


College Expenses and Divorce

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In a divorce, the Minnesota courts cannot impose on a parent the obligation to pay for college. This is because Minnesota family law does not govern children who have reached majority.  The family court will not interfere with the application of existing college funds to tuition expenses, and cannot interfere with the provisions of an UTMA (Uniform Transfers to Minors Act) account or 529 Plan.  The family court will also enforce an agreement between parents to contribute to college expenses, but only an agreement that both parties enter into voluntarily.  The family court cannot order a parent to do so against his or her will.

The result of this situation is that many young adults of college age receive less help for college as a result of their parents’ divorce compared to their peers.  In some cases, the conflict between the parents results in a bitter parent’s withdrawal (or both parents’ withdrawal) of support for a child’s higher education.  More commonly, the economic realities (and struggles) of the parents’ divorce renders both parents much less able to contribute to college expenses.

There are times when the spouse with the greater income owes the duty of paying alimony or spousal maintenance to the other spouse, but would – if given the right – make a higher priority of a child’s college expenses than the other spouse’s living expenses.  The family court cannot allow the needs of a child who is no longer a minor to come before the needs of a spouse unless the child is disabled or otherwise in special need.

For families with college-age children, or children nearing college age, the need for a strong financial plan and the consequences of a high-conflict divorce are important considerations when the parents’ marriage is dissolved.

Divorce, and a House with No Equity (or Negative Equity)

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Six to ten years ago, nearly every divorce in which the couple owned a house provided the couple some equity value to divide.  The house was an asset, and the spouses could sell the house, and divide the proceeds; or one of the spouses would buy out the other spouse’s interest in the house.  In the latter case, one spouse would be given a financial settlement for the asset he or she would be leaving behind.

Then there was a housing bust that caused scores of foreclosures and short sales.  Many economists believe that we may be climbing out of that hole, and the housing market is improving.  But that does not change the reality for many divorcing couples that their house has value at or below the balance owed on their mortgage.

In the case of a house with negative equity, if one spouse leaves the house behind, the other spouse is left, not with an asset, but with a liability.  The spouse left with the liability may believe that the departing spouse should pay something towards the debt on the house.  The problem with that idea is that the house may end up in foreclosure, or a short sale, or the spouse who stays in the house may be able to negotiate with the bank on the mortgage.  In other words, the spouse who stays may not end up realizing the entire “negative value,” so to receive from the departing spouse a “full accounting” of the negative value may result in something of a windfall to the spouse who stays.

Moreover, if the couple has children, one spouse may stay in the house to avoid, or delay, the children’s move to another house.  In so doing, that spouse derives intangible benefit, essentially an unquantifiable value, from remaining in the house – particularly if that spouse is able to negotiate with the bank, and is able ultimately to remain in the house, with the children, indefinitely.

The most common practice is to treat the “underwater” house as a “zero asset.”  The departing spouse is incurring the expense of renting, which offsets the expense to the remaining spouse to continue to make payments on the mortgage.  In the case of a home with a larger mortgage payment, the remaining spouse may leave the house after the expiration of the mortgage redemption period, without putting any additional money into the home.  Either way, assigning a zero value to the house is often found to be the fairest resolution.

Waiting Period for Divorce – Misguided Idea

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A bill has been introduced in the Minnesota Senate for a two-year waiting period in contested marriage dissolutions that involve children.  The concept of a waiting period is misguided if its purpose is to encourage (force?) parents to stay together “for the kids.”

The current law provides that if one spouse (not both) asserts that the marriage is irretrievably broken, the family court will grant a marriage dissolution.  This means that one spouse may want to save the marriage, and the court will still dissolve it.  Not ideal, for sure.  But what is the alternative?  Forcing someone who does not want to be married to stay married?

Under the current law, a marriage requires both spouses either to be fully committed to the marriage or to be subscribing to the belief that the marriage can be saved.  One could describe marriage the same way without referencing the law at all.  A marriage cannot survive if one spouse has one foot “in” and one foot “out.”  There are occasions when the spouse who has “checked out” can be brought back into the marriage through counseling.  But those occasions are far outnumbered by situations in which the marriage truly cannot be saved.

When children are involved, there is more reason to allow the marriage dissolution to proceed quickly, not less. Studies show that children living with parents who experience high marital conflict suffer more than children whose parents live separately.  Certainly, children are best off living with parents who live together and experience low conflict, and are worst off in high-conflict situations whether their parents live together or not.  But the dissolution of their parents’ marriage can be the triggering event to transform a child’s living environment from a high-conflict situation to a low-conflict situation.

Family courts would struggle with management of divorce cases if there were a two-year waiting period. During the waiting period, the conflict between spouses over parenting plans, child support, valuation of marital property, and the extended transition from living as a couple to living apart would be very destructive.

If the bill progresses into anything given serious consideration – here’s hoping that never happens – it would be interesting to see what empirical basis could possibly be presented to support the notion that a waiting period is a widespread solution to a widespread problem.



Alcoholic and Chemically Dependent Parents and Child Custody

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If a couple with children separates, and one of the parents is alcoholic or chemically dependent, should the family court:

a.    Terminate the addictive parent’s parental rights;

b.    Restrict and/or supervise the addictive parent’s parenting time;

c.    Condition the addictive parent’s parenting time on his or her sobriety; or

d.    Leave alcoholism or chemical dependency out of the custody and parenting time decision altogether?

It depends, but in nearly all cases, options (a) and (d) would be ruled out.  Option (d) is too extreme.  The family court needs to address the totality of the child’s circumstances in order to determine what is in the child’s best interests.  There is no way to comprehensively consider the child’s best interests if a parent’s addiction to drugs or alcohol is ignored.

Option (a) is too extreme in the other direction.  If an addictive parent’s parental rights were terminated, there would be other factors involved, such as criminal or abuse issues, persistent neglect of the child, the posing of significant danger to the child, or repeated failure to seek treatment for his or her addiction.

Option (b) is the most likely scenario if the addictive parent is not properly addressing the addiction, or is in the preliminary stages of recovery.  Restrictions and/or supervision are necessary to protect the child from the potential risk of being in the care of an impaired parent.

Option (c) is the common arrangement if the parent has learned how to manage his or her addiction. With proper management of addiction and sustained sobriety, the custody and parenting arrangements can be normalized.  There may need to be a backup plan for both parents to follow in the case of a relapse. Better still is a parenting plan with healthy co-parenting and communication that encourages the addictive parent to self-assess or self-report if his or her sobriety is tested or threatened, so that he or she is in no way deterred from doing the right thing for the child.  It is really no different than the circumstances of any child whose parents must rise to the occasion when coping with an emergency situation.

Being alcoholic or chemically dependent should not serve as an automatic disqualification for a parent to have primary custody or liberal parenting time.  Many parents who have overcome addiction are as equipped, or better equipped, to care for children as a parent who has not met those kinds of challenges. Consider a child whose parents are both addicts.  Option (c) is a necessary component in those circumstances, and the parents’ mutual accountability for sobriety is paramount.  Otherwise, the child is, by default, living in unsafe and uncertain circumstances.

There is no simple or quick answer to the questions that arise when child custody and parenting time are determined in cases of one or two alcoholic or chemically dependent parents.  If the issue is given proper weight, neither amplified nor ignored, the children are given the safe and secure living environment that they deserve.

Same Sex Divorce in Minnesota – Part 2

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As a followup to my November blog post about gay divorce, it is interesting to note Minn. Stat. Section 517.03, which dates back to 1997, and reads as follows (note the italicized parts):

(a) The following marriages are prohibited:

(1) a marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final, as provided in section 518.145 or by the law of the jurisdiction where the dissolution was granted;

(2) a marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;

(3) a marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures; and

(4) a marriage between persons of the same sex.

(b) 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.

It is also interesting to note Minn. Stat. Section 517.20 (italicized in its entirety):

Except as provided in section 517.03, subdivision 1, paragraph (b), all marriages contracted within this state prior to March 1, 1979 or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.

Section 517.20, which dates back to the late seventies, modified the requirements for marriage licenses, and “grandfathered in” all previous Minnesota marriages and all valid out-of-state marriages.  It is interesting to note (and frankly, somewhat troubling) that the 1997 legislature not only banned gay marriage but pre-empted the “grandfathering” of out-of-state gay marriages.

Aside from the politically charged issue of strictly limiting the defininition of marriage, the legislation creates problems for cohabiting couples, their children, their attorneys, family court judges and other related professionals.  If gay couples marry elsewhere, move to Minnesota, and then break up, their children do not deserve the uncertainty that is brought about by not falling within the purview of typical family law cases.  Nor does the financially dependent party to the breakup deserve the uncertainty involved in co-ownership of homes, cars, bank accounts and the co-responsibility on mortgages, leases, debts and credit cards.

There will necessarily be some progress and evolution in the enforcement and amendment of these laws, and the promulgation of other laws, to address these situations over time.