“Divorce is 80 percent emotional, 10 percent legal and 10 percent financial.” This is the quote that rings most true to me in an article posted by the New York Times, “Can Divorce Be Affordable? Yes, but Only if Spouses Want It to Be.” Every divorce case is unique, and the costs related to different processes vary greatly. But every alternative to a litigated court battle is likely to be substantially less expensive, financially and emotionally. In addition to the options mentioned in the article is a flat-fee divorce, which my office offers in certain cases where there are no contested issues, and where both spouses are expressly cooperative with the process.

https://www.nytimes.com/2023/11/25/business/affordable-divorce-mediation.html

When separated parties co-parent children, there is a basic premise that both parties have the right to parenting time and the obligation to provide financial support. All parents – custodial, non-custodial, and joint custodial – are presumed to be entitled to parenting time. And all parents have the obligation to provide financial support, whether that is by paying child support and/or by paying children’s expenses directly.

Minn. Stat. Section 518.612 expressly asserts that a party’s failure to make support payments is not a defense to interference with parenting time, and interfering with parenting time is not a defense to nonpayment of support. The right to parenting time is not conditioned on payment of child support, and the obligation to pay child support is not conditioned on the right to parenting time.

In cases in which a child is not seeing one of the parents due to safety concerns, that parent is nevertheless obligated to pay child support. And a parent whose support obligation is suspended or reserved by the court is nevertheless entitled to parenting time.

When a couple gets divorced, both parties have an opportunity to change their name. Either party may change their name, whether or not they have been known by one or more names previously. A party changing their name must confirm to the family court on the record that the name change is not for purposes of defrauding others (such as creditors). And if the party changing their name has been convicted of a felony, there are additional steps to take to complete the name change, involving an application to the party’s prosecuting authority.

Minn. Stat. Section 518.191 provides for the family court to issue a Summary Real Estate Disposition Judgment (SREDJ) as a brief document separate from a divorce decree. The SREDJ can be filed with the county recorder in lieu of a quitclaim deed to clear title to the landowner.

That is to say, when the divorce decree awards one spouse sole ownership of the marital homestead, it may not be possible to obtain a quitclaim deed from the spouse who moved out. There may be difficulties with locating the spouse who moved out, or they may be unwilling to cooperate in formally relinquishing their interest in the homestead.

The SREDJ provides an alternative that does not require the involvement or cooperation of the spouse who moved out. The spouse in possession of the homestead, with or without the assistance of counsel, should submit to the appropriate family court a proposed SREDJ with the proper contents set forth in Minn. Stat. Section 518.191.

When a couple divorces or separates, and has no children in common, then either party is free to move, or live, where they choose and/or where they can afford to live. If the parties have no minor children (children under age 18), the same goes. This contemplates that the adult child(ren) can live where they please, since they are on their own under the law.

If the couple share a minor child, or children, then it is also the case that either party is free to move where they choose. However, the child(ren) will not move out of state without either the other parent’s consent, or the court’s permission. So if a co-parent wishes to move out of state, that is fine, if the child(ren) stay(s) behind living (primarily) with the other parent in Minnesota. If the moving parent wants the child(ren) to move with them, then they need the other parent’s consent, or the court’s permission.

The current law requires the moving parent to establish by a preponderance of the evidence that the move is in the child(ren)’s best interests. The burden of proof is on the moving parent. (There is an exception to that if there is domestic violence involved, in which case the allegedly abusive parent carries the burden of proof.)

Minnesota does not have a statute that mandates a presumption of 50-50 custody. The fact is, with or without a statutory presumption, 50-50 custody is common and, I believe, getting more and more common over time. What Minnesota statute does provide for is a minimum of 25 percent parenting time, absent evidence suggesting otherwise.

It is reasonable to figure that many couples will agree to 50-50 custody, and in many cases the court will order 50-50 custody. And that where the agreement is not a 50-50 arrangement or where the court does not order a 50-50 arrangement, the outcome might be 60-40 instead, or 70-30 or 75-25. All depending on (a) what the parties agree to; or (b) what the court determines to be in the child’s best interests based on the court’s understanding of applicable facts and circumstances.

Conversely, if the agreement of the parties, or the court’s decision, is 80-20, 90-10, or 100-0, how does that mesh with the statute that contemplates a minimum of 25 percent? In the case of agreement of the parties, the court and the statute will not preclude the parties from determining for themselves a stipulated “fair justice” in their case. If one parent lives out of state (or country), for example, and the annual parenting schedule, as agreed by the parties, provides for that parent to have less than 25 percent parenting time, no harm – no foul.

In the case of the court making a determination, it should be noted that the statute contemplates a minimum of 25 percent parenting time absent other evidence. If the court makes findings regarding the best interests of the child that weighs in favor of 80-20, 90-10 or 100-0, it would have to do with the fitness of the non-custodial parent, or their work schedule, or there geographic proximity, or some combination thereof.

One of the statutory factors that the family court must consider in child custody cases is the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference. This addresses one of the most common questions that people ask about child custody: how old does the child need to be to decide where they live? The answer is 18. But… if they are old enough to express a reliable preference, their preference may be considered by the court. Many custody professionals use the adage, “Kids have a voice, but not a choice.”

If the child is, say, three, they are too young to express their feelings in a manner for the court to give serious consideration. But you try to tell an older teenager where to live, against their will, and the parents are likely to have more trouble than if they adhere to the child’s wishes.

When parties divorce, and one of the parties keeps the marital home, the other party typically signs a quitclaim deed. The quitclaim deed is a transfer of the property without a closing. The quitclaim deed signed pursuant to divorce contemplates that there is consideration for the signing party’s relinquishment of interest in the home. That consideration may be a cash buyout, or it may be traded for another asset such as retirement funds. Or, the signing party may have an inchoate interest in the home, which is the situation when the signing party did not contribute to the equity in the home but nominally has a legal interest in the residence because of being married to the equity owner.

Whatever the case, the Summary Real Estate Disposition Judgment (SREDJ) is a document signed by the court, not one of the parties. The SREDJ encapsulates the provisions of the divorce decree that involve the real estate, without all the other provisions (including personal matters) so that it can be filed with the county recorder and provide clear title. The SREDJ is an alternative to the quitclaim deed that is especially helpful if, for whatever reason, the relinquishing party cannot or will not sign the quitclaim deed.

In family court, if there is a dispute over child custody, the court will often use the findings and observations of a custody evaluator to guide and support the court’s ruling. Commonly, the custody evaluator is a neutral third party agreed upon by the parties, or appointed by the court (or both). It is also an option for a party (or each party) to have their own expert.

The custody evaluator will meet with the parties, meet the child(ren), observe each party with the child(ren), and correspond with collateral contacts, such as other family members, the child’s teachers, the child’s primary doctor, and any other third parties who can provide relevant information regarding the child’s best interests. The evaluator will ultimately produce a custody report that can be offered into evidence for the family court’s consideration in rendering a decision.

The fact is, the custody evaluation is a worst-case (or at least, worse-case) scenario. It takes many months, can be heart-wrenching (for the parents and the children) and is enormously expensive. Parents are well advised to pursue mediation, early neutral evaluation, a moderated settlement conference, or the appointment of a parenting consultant. These models provide the parties with insightful recommendations and, in some situations, binding decisions to bring a custody dispute to resolution. All of them are voluntary, and cannot be mandatorily imposed on the parties. And ultimately, both parties have the right to resort to a court trial as a last resort. But almost all family court judges will themselves call out the advantages of resolutions that occur outside of court, and discourage the parties from leaving the decision to the court, and the trial process.

While there is a statute that addresses the rights of the family court judge to interview children in chambers, it is rare for this to occur. In years past, there may have been more frequent occasions when the court would undertake an “in camera” interview. But custody professionals tend to discourage such a direct involvement of a child in the process of a contested custody proceeding because of the stress, an potential trauma, to the child.

The reader may wonder about the potential trauma to the child in the absence of an interview in chambers. But few family court judges have the proper background and training to conduct an interview in an age and developmentally appropriate way. Most family court judges would self-identify accordingly.

In recent years, the unlikelihood that a judge would be willing to proceed with an interview, coupled with the unlikelihood that the parties and their attorneys would agree to the same, has resulted in interviews in chambers all but going extinct. There are many alternatives to an interview in chambers, including custody evaluations, early neutral evaluations, brief focused assessments, parenting consultants, custody mediation, and child-inclusive mediation. An interview in chambers has the “up” side of being relatively expeditious and relatively inexpensive. But the disadvantages almost assuredly outweigh the advantages.