Author Archive for Gerald Williams – Page 15

Veto Power

· March 14, 2009

If you have an issue or dispute that must be addressed by the family court, in almost all instances you have one or more opportunities, before the family court issues a decision, to reach a resolution with the opposing party, outside of court. When the dispute is submitted to the mediation process, you have something that you lose if the decision is left to the family court judge or referee: veto power.

In mediation, the mediator does not have the authority to impose a resolution or court order upon you against your will. If a compromise must be reached, or a concession must be made, you have the power to assent, or veto, the compromise or concession. In many cases, you are better off to agree to a known concession than to have an unknown concession imposed upon you by the family court.

The point at which it becomes an exercise in futility to resolve the matter outside of court is when it is worth the risk of what the court might impose upon you. That is, when the concessions that you must make in order to reach the out-of-court resolution are so substantial that you are likely to fare better in court. Most disputes can result in a mutually satisfactory settlement in which both parties make reasonable, measured concessions. If it is necessary for you to concede something, it is better to be able to veto the worst scenarios, in favor of something more palatable.

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Categories : General Family Law

When The Court Reserves Alimony or Spousal Maintenance

Posted by Gerald Williams

· March 1, 2009

· 3 Comments

In family court, there are cases in which the court grants spousal maintenance (i.e., alimony), and there are cases in which the court denies spousal maintenance. There are also cases in which the court RESERVES spousal maintenance. When the court reserves spousal maintenance, there is no obligation to pay spousal maintenance, now or in the immediate future, but there COULD BE the obligation to pay maintenance in the future.

As an example, in Case A, the court finds that one spouse in a divorce is not self-supporting, and the court awards spousal maintenance to the dependent spouse. In Case B, the court finds that both spouses are self-supporting, and the court refuses to award maintenance to either spouse. In Case C, the court finds that one of the spouses is not self-supporting, but the other spouse is currently unemployed, so the court reserves maintenance. This reflects the fact that the spouse who would otherwise pay maintenance does not currently have income to pay maintenance, but that the court believes that, once re-employed, that spouse will have the ability to pay maintenance. The family court has reserved jurisdiction over the issue, so that in the future, the court may consider whether the facts and circumstances warrant a maintenance obligation.

In many cases like Case B, when the court refused to award maintenance, the court loses jurisdiction to address the alimony issue in the future. That is, the court's authority to award maintenance in the future expires, unless the court expressly reserves the issue. The family court continues to have jurisdiction over the alimony issue only when one of the spouses is not self-supporting, or there is some doubt about one (or both) spouse's ability to become self-supporting in the future.

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Categories : Alimony / Spousal Maintenance

Financial Early Neutral Evaluation

Posted by Gerald Williams

· February 16, 2009

· No Comments

Financial Early Neutral Evaluation (FENE) is a process that is similar to Early Neutral Evaluation for custody and parenting time issues (which is sometimes referred to as Social Early Neutral Evaluation (SENE), to distinguish it from Financial Early Neutral Evaluation). The FENE model does not contemplate a team of two evaluators, as in SENE; instead there is one evaluator handling a FENE process.

The “early” aspect of FENE is important, because financial disputes in family law can be costly and time-consuming. If the parties engage in the FENE process early on, they may save a great deal of time, energy and money, and still obtain a fair resolution.

The financial evaluator gathers the information about the dispute that the evaluator needs to address the issue. This is very helpful in the financial arena, because oftentimes parties do not know the difference between relevant and irrelevant financial data. The financial evaluator has the insight, and the neutrality, to help determine what financial data is needed, and what is not needed.

As in the case of Early Neutral Evaluation regarding parenting issues, in FENE, the evaluator can help facilitate a resolution and/or provide their neutral view of how the court might address the financial issues in a courtroom dispute. Therefore, if the FENE process does not result in resolution, parties likely leave the process ahead of where they were at the beginning: with an impartial assessment of what data is relevant, as well as an impartial assessment of the substantive financial issues.

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Categories : General Family Law

Early Neutral Evaluation

Posted by Gerald Williams

· February 1, 2009

· 1 Comment

If parents have a dispute, or potential dispute, about child custody or parenting time, the Early Neutral Evaluation (ENE) is a great option with a high success rate.

The ENE model works as follows: the parties meet with a team of two evaluators, one man and one woman, who hear from each parent about the facts of the case. The evaluators have training and experience that allows them to provide feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full custody or parenting time evaluation.

The evaluators can then attempt to facilitate agreement of the parents on a parenting plan that is suitable for the child(ren) involved, and also recommend other services of guidelines, such as parenting time supervisors, anger management resources or child therapists. If the parents do not reach agreement, the case will proceed to evaluation, trial, mediation. But even in such event of the matter not being resolved in ENE, it provides the parents with a better understanding of how the dispute will play out, and what the basis is for the other parent's disagreement.

It is an informal process, in which the parents are not "testifying" and are not under oath. So the evaluators' observations are only as good as the facts they get from the parents. In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations. The process bears out the fact that many 90-day, full-blown custody evaluations reach the same conclusions that ENE evaluators reach during a three-hour session.

If one parent calls the other parent an alcoholic, an abuser, or insists that the other parent is mentally ill, and the other parent denies it, the evaluators have to make their recommendations notwithstanding the disconnect between the parents' presentations of the circumstances. But in ENE, as in custody cases generally, the fact that there is contention about alcohol, abuse or mental illness means the issue needs to be addressed regardless of whether one parent is alcoholic, abusive or mentally ill.

If ENE is successful, the parties sign off on a parenting plan based upon the terms reached during the ENE session(s), and it is not necessary to proceed with a contested custody or parenting time dispute.

1 Comment

Categories : Child Custody

Study Group’s Report on Joint Physical Custody Presumption

Posted by Gerald Williams

· January 15, 2009

· 2 Comments

In a February 2008 blog entry, I mentioned that a bill came before the Minnesota Legislature to enact a presumption in favor of joint physical custody in Minnesota family courts. The legislative committee referred the bill to a study group, whose charge was to consider the prospect of a joint physical custody presumption.

The study group has issued its report with six non-comprehensive, non-unanimous recommendations. The study group has recommended that the Legislature do the following:

1. Fund the collection of data regarding custody arrangements and parenting plans over several years;

2. Promote cooperative agreements in future custody and parenting legislation;

3. Continue to provide the family court the ability to consider individual needs of children and families in making custody and parenting decisions;

4. Consider the essential importance of the safety of children and parents;

5. Amend current statutes to make it clear that there is no presumption for or against joint physical custody (except for the rebuttable presumption against joint physical custody in cases involving domestic abuse); and

6. If there were a presumption of joint physical custody in the future, that the term be clearly defined, and its relationship to the determination of parenting time also be clearly defined.

While the study group worked under time limitations that precluded more comprehensive recommendations, the conclusions reached by the study group reflect thorough consideration of the issue.

2 Comments

Categories : Child Custody

Dividing Personal Property

Posted by Gerald Williams

· January 14, 2009

· 1 Comment

When a couple divorces, the personal property must be divided. That includes households goods and furnishings, and general “stuff” in the home. While the division of items can often be a contentious subject, family court judges discourage spouses from devoting too much time and emotion (and expense) to it.

In many cases, the spouses divide the personal property when they establish separate households. But in other cases, a spouse who has departed from the marital home may have living arrangements that are temporary, or lack sufficient space to accommodate half of the couple’s belongings. If one spouse has all (or nearly all) the personal property, there are several common resolutions, other than renting storage space. The spouses may agree to an itemized division, memorialized in writing, to be implemented on a certain date, or within a certain time period. It may be agreed that one spouse is keeping all, or nearly all, the property items (because the other spouse doesn’t really want a lot of “stuff” anyway), the parties agree on a reasonable value for the items, and that value is accounted for in the overall division of assets and liabilities. In some cases, a mediator or arbitrator is appointed to oversee the parties taking turns choosing items, one by one. A garage sale, and division of proceeds, is a common idea that is not commonly implemented. (The property items usually have more value to one or both spouses than they do to any third-party willing-buyers.)

If the spouses must incur legal fees in a dispute about personal property, there may be a danger of spending more in legal fees than one would spend in replacing the disputed property items.

There are family court anecdotes about judges unhappy with couples bickering over the stuff — such as ordering one party to divide the items into two groups and allowing the OTHER party to choose one of the groups of items. Or threatening to toss a disputed item out a fourth story window if the parties do not quickly resolve the dispute on their own. In the end, it is better if the division of personal property is resolved without the need for the family court to make a ruling.

1 Comment

Categories : Divorce, General Family Law

Domestic Abuse Order for Protection Proceedings

Posted by Gerald Williams

· December 4, 2008

· No Comments

When a domestic abuse case comes before the family court, the responding party has three choices:

1. Admit the allegations of abuse (resulting in issuance of the requested Order for Protection);

2. Deny the allegations and proceed with an evidentiary hearing (usually scheduled for a day one to two weeks later, but occasionally takes place later the same day of the admit/deny hearing);

3. Deny the allegations, but assent to the issuance of the Order for Protection. In this instance, the court enters the Order for Protection without a finding of abuse, and the Order pre-empts future contact and/or abusive actions without regard for what happened in the past.

If there is an evidentiary hearing, the court considers the testimony of both parties, and any other witnesses or evidence, and decides whether to issue the Order for Protection.

If there are pending marriage dissolution or child custody proceedings involving the same family, the district court judge in the domestic abuse action will usually give consideration to that, and narrowly tailor the provisions of any Order for Protection so that the dissolution or custody proceedings are not impacted greatly by the domestic abuse action.

The advantages of assenting to the Order include avoiding the airing of "dirty laundry" at an evidentiary hearing, as well as the risk of the court deciding in favor of the petitioning party. The disadvantages of assenting to the Order include the concern of violating the terms of the Order (even inadvertantly), and the chilling effect that such an Order has on communication if the parties have minor children and/or if the parties are negotiating the terms of their marriage dissolution.

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Categories : General Family Law

Judges, Referees and Child Support Magistrates

Posted by Gerald Williams

· November 6, 2008

· No Comments

If you appear in family court in Minnesota, or submit a matter to the family court for review or consideration, it will be handled by a family court judge, a family court referee or a child support magistrate. Most family court hearings are presided over by judges.

The involvement of referees is limited to certain counties (i.e., Hennepin and Ramsey Counties). In those counties, some family law cases are heard and decided by judges and some are heard and decided by referees. A referee has the same authority as a judge, but the referee’s signed orders must also be signed by a judge. (The fact that a judge signs the order does not mean that a separate hearing before the judge is required.) A party who objects to a referee’s order must obtain review from the Court of Appeals. (Years ago, a party who objected to a referee’s orders could obtain review of the referee’s order by a family court judge. That process is no longer available.)

The involvement of child support magistrates is limited to certain cases involving only child support (i.e., those cases in which the county is providing child support enforcement services). All Minnesota counties have child support magistrates. A party who desires review of a child support magistrate’s order must seek that relief from the Court of Appeals.

If the case is not located in a county that has referees; pertains to a child support in which the county is not providing enforcement services; or involves issues other than child support, the case will be heard and decided by a family court judge.

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Categories : Child Support, General Family Law

The House: Yesterday’s Asset is Today’s Liability

Posted by Gerald Williams

· October 8, 2008

· 2 Comments

In a divorce, when Spouse A leaves the marital homestead in the hands of Spouse B, typically Spouse B must buy out the marital interest of Spouse A. At least, that is how things used to be, before the current era of the depressed housing market. Today, it is not unusual for Spouse A to leave the house behind,and not to be bought out by Spouse B at all. The departing spouse is likely to be only too happy to leave the mortgage payment behind as well, and to get out from underneath the burden of a big house payment and shrinking home equity.

If a family is struggling in this economy to stay current on a hefty house payment, that concern grows exponentially in the midst of a divorce. It has always been difficult to support the two individual households of a separated couple on the same income as before the separation. Add to that the fact that home values that are not appreciating, and it is nearly impossible for a family to stay afloat financially.

Selling the house tends to be an even drearier prospect. One is likely to lose money on the sale, with so many families encumbered by a second mortgage or home equity line of credit. Renting typically costs the same, or more, than a house payment. Most importantly, it is a very bad time to market a residential property without the home being "priced to sell." Most financial planners will suggest that someone stay put where they are, and ride out the bad housing market (which could take years).

If a divorcing couple sees fit to sell the marital homestead in this unfriendly market, it is likely an effort to tap into the opportunity to purchase a downsized residence. The upside of a bad market for selling, after all, is a good market for buying.

For now, and for the next few years, breaking even on one's home equity is the best that most divorcing couples can hope for. These sobering realities, and realistic expectations, will carry the day until the housing market recovers.

2 Comments

Categories : Divorce, General Family Law

Parenting Expense Adjustment to Child Support

Posted by Gerald Williams

· September 24, 2008

· No Comments

The current Minnesota child support law factors into its calculations the fact that the child support obligor incurs expenses when caring for the child(ren). The child support statute provides a parenting expense adjustment in which the basic support calculated based upon the income of the two parents is reduced by twelve percent (12%). The adjustment applies to all cases except those in which the payor parent has (a) very little access to the child, or (b) access to the child that is nearly equal to the other parent. As long as the child spends between ten percent (10%) and forty-five percent (45%) of time with the payor parent, the 12% reduction applies. (As an example, a non-custodial parent who has parenting time one day per week, or alternating weekends, meets the 10% threshold.) The applicable parenting schedule must be in a written court order in order for the parenting expenses adjustment to be implemented.

If the payor parent has the child(ren) in his or her care for more than 45% of the time, a very different calculation of child support applies. In these cases, the custodial arrangement is commonly termed "joint physical custody," because the child spends substantial residential time in each home. In those cases, generally the child support obligation is substantially less than it would otherwise be. However, in such circumstances, it is expected that the payor parent will contribute directly to other expenses of the child(ren), such as clothing and extracurricular activities. Such a living arrangement for the child(ren) would reflect that the parties have the ability to cooperate in co-parenting, and therefore to also cooperate in fairly incurring and allocating the parenting expenses.

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Categories : Child Support

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Minnesota divorce attorney, Gerald O. Williams, represents clients in divorce and family law primarily in the communities of Woodbury, St. Paul, Minneapolis, Eagan, Inver Grove Heights, Cottage Grove, Maplewood, Oakdale, Lake Elmo, and Stillwater, as well as the greater seven county metro area including Washington, Ramsey, Hennepin, Dakota, Anoka, Scott, and Carver.

Author Archive for Gerald Williams – Page 15

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