Birdnesting

· September 20, 2009

The term birdnesting refers to a custody arrangement in which the children remain in the home, and the parents alternate residence in the home with the children. It requires each parent to have a home outside the children’s home (perhaps one alternately shared by the parents). The birdnesting arrangement has been hailed by some as a wonderful way to put the children’s interests first, and for parents to demonstrate the ultimate in cooperation and collaborative co-parenting. It is rare, however, for such an arrangement to succeed on a long term basis.

One challenge is financial: how can divorced parents co-reside in a home without co-owning the home? Which parent retains the equity in the house? Do both parents contribute to the mortgage payment? Who owns, and pays for, the other residence?

Further, if either parent remarries or relocates to another city, the arrangement ends, and it is necessary to devise a parenting plan that involves two different homes for the children. Even in the absence of a remarriage or relocation, the birdnesting arrangement constitutes more of a transitional experience for the parents than a new chapter in the parents’ lives.

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Categories : Child Custody

Selling the House in a Bad Market

Posted by Gerald Williams

· September 7, 2009

· No Comments

One of the dilemmas that divorcing couples are currently faced with in this rough economy is how to deal with the marital homestead. In a depressed real estate market, it is not an optimum time to sell the house. But selling the house is a necessity for many couples in which neither spouse can afford the house on their own; particularly if the couple is behind on payments and/or the house's current value is LESS than the mortgage balance.

The upside of selling in a bad market is BUYING in a bad market. If both spouses are going to be able to buy into the bad market, then selling ultimately is not a drawback. This requires either that the house proceeds – though lower than desired – are still sufficient for each spouse to make a down payment OR the individual spouses may obtain financial backing (from a bank or family member) to make the down payment on a new residence.

For many couples, the answer is to find a way to hold on to the house until the market recovers. In many cases, that involves one spouse maintaining the homestead, possibly at a deficit; and the other spouse renting, possibly also at a deficit. It is difficult for the spouse who maintains the homestead to wait – and hope – for the day that the homestead has gained back the lost equity. It is difficult for the spouse who does not maintain the homestead, because the value of their interest in the home is determined at the time of the divorce, an inopportune time in this economy.

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Categories : Divorce, General Family Law

Child Support – The New Era of Income Shares

Posted by Gerald Williams

· July 23, 2009

· 2 Comments

Child support used to be calculated by taking the non-custodial parent’s net income, and basing child support on a certain percentage of net income, depending on the number of children being supported.

Under the child support law that was passed a couple years ago, both parents’ incomes are factored in. The statute contains a table that provides a base amount of child support that children are entitled to, based upon the combined income of the child(ren)’s two parents. The obligor parent pays a percentage of the base amount provided for in the statutory table, based upon his or her proportional share of the combined income. For example, if the statutory table provides for base support in the amount of $1,000; and the obligor parent’s income is 70% of the parents’ combined income, the obligor parent would have a base child support obligation of $700.

The support number is reduced to reflect parenting time that the obligor has. If the parents have equal, or nearly equal, custody / parenting time, then the support number is reduced substantially (by means of a somewhat different equation). If the obligor parent has little or no parenting time, then there is no reduction.

2 Comments

Categories : Child Support

Spousal Maintenance Factors

Posted by Gerald Williams

· July 15, 2009

· 2 Comments

The Minnesota alimony statute lists factors for the family court to consider in deciding a case of spousal maintenance. However, the statute directs the court to consider “all relevant factors” which may include factors other than those listed. The statute also directs the court to make the decision “without regard to marital misconduct.” That is a reference to the no-fault aspect of Minnesota divorce law, in which one spouse cannot be treated less kindly for misconduct such as adultery and domestic abuse.

The spousal maintenance factors listed in the statutes are:

The financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
The standard of living established during the marriage;
The duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
The age, and the physical and emotional condition of the spouse seeking maintenance;
The ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

2 Comments

Categories : Alimony / Spousal Maintenance

Moving Out of State With Minor Children

Posted by Gerald Williams

· June 11, 2009

· 3 Comments

One important change in Minnesota law in recent years pertains to changing the state of residence of minor children. Previously, Minnesota was one of a minority of U.S. states to allow a custodial parent to move with a child to another state unless the non-moving parent proved that the move was contrary to the child’s interests. That is, previously, the non-moving parent had the burden of proof, and if the burden of proof was unmet, the moving parent was granted the right to change the child’s state of residence.

The current law in Minnesota now matches the majority of other jurisdictions: the moving parent has the burden of proof, to show that the move is consistent with the child’s interests. Minnesota Statute Section 518.175, subd. 3, provides as follows:

The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child’s residence to be moved to another state.
The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child’s residence to another state. The factors the court must consider in determining the child’s best interests include, but are not limited to:
- the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child’s life;
- the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;
- the feasibility of preserving the relationship between the non-relocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
- the child’s preference, taking into consideration the age and maturity of the child;
- whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person.

It is important to consider that, in many cases, the burden of proof is not dispositive. If the moving parent has a compelling basis for moving the child, the court would permit the move, whether the moving parent or non-moving parent had the burden of proof. Conversely, if the moving parent has a weak case for moving, it would not matter whether the moving parent or the non-moving parent had the burden of proof; the request to move would be denied. The recent shift in the law impacts those cases in which the moving parent arguably has a strong basis for moving the child, but the non-moving parent has an equally strong basis for opposing the move.

Moreover, as with most other custody and parenting issues, the family court is likely to rely on the observations and recommendations of a custody expert or parenting neutral in determining the relative merits of a moving parent’s contentions versus the non-moving parent’s oppositions.

3 Comments

Categories : Child Custody, Divorce, General Family Law, Guardian ad litem, Parenting Time

Joint Custody and Child Support

Posted by Gerald Williams

· May 26, 2009

· 6 Comments

Under the Minnesota child support law that has been in effect since 2007, the amount of child support is based on both parents' incomes. There is a guideline table in the statute that provides a set amount of base support that a child or children are entitled to based upon the sum of mom's income and dad's income. The amount of the payor parent's obligation is figured by that parent's proportional share of the two parents' combined income applied to the base support in the aforementioned guideline table.

If the parents have equal, or nearly equal, parenting time (i.e., if the child's living arrangement reflects joint physical custody), the calculation is different (…and too complicated to explain in brief space here.) Suffice it to say, the payor parent's obligation is substantially less.

The joint custodian's lower child support obligation reflects the fact that the joint custodian is contributing to regular, daily expenses in a manner that a non-custodial payor parent does not. That is to say that, in the first example above, the obligor parent pays child support to the custodial parent, and the custodial parent covers the child's expenses, including clothing, footwear and regular, extracurricular activities. (The payor parent does cover incidental expenses during parenting time, such as food, movie tickets and travel expenses.) In the second example above, the joint custodian pays a LESSER amount of child support, but also contributes to the child's expenses, such as clothing, footwear and extracurricular activities (and not just parenting time expenses).

There are times when a payor parent views it as a "bad deal" to pay the "higher" amount of child support. The up side is not having to contribute additionally to day-to-day expenses. Conversely, the "down" side of paying the "lower" amount of support that a joint custodian pays is having to also contribute to day-to-day expenses.

6 Comments

Categories : Child Support

Don’t Take (All) the Money and Run

Posted by Gerald Williams

· May 6, 2009

· No Comments

At the outset of a divorce, should you clean out the joint account? Or should you refrain from cleaning out the joint account, just to see the account cleaned out by your ex?

Suppose there is $10,000 in the account. If you take the $10,000, your spouse is likely to cry foul, and you may well live to regret what can be perceived as an act of bad faith. But if you do nothing, can you trust that your spouse won't take all the funds? Will it be sufficient consolation to you that your spouse has painted himself or herself as a scoundrel? (That won't pay the rent.)

If you feel like you must take some action, rather than doing nothing, you might consider withdrawing $5,000 (half the balance) and placing it into a separate account solely in your name. Your spouse has much less reason to cry foul. But you also pre-empt your spouse from unfairly secreting all of the joint funds without your knowledge.

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Categories : Divorce, General Family Law

Moving Out of State With the Children

Posted by Gerald Williams

· April 27, 2009

· No Comments

When one parent wants to move out of state, with the children, a dispute often erupts because of the other parent's opposition to such a big change for the kids. In most states, if a parent wants to move the residence of the children to another state, the burden of proving the merits of the move to the court lies with the parenting desiring to move.

Until recently, Minnesota was in the minority: making the non-moving parent prove that the move is a BAD idea. Legislation in 2006 brought Minnesota in line with the majority of jurisdictions, placing the burden of proof on the parent petitioning to change the children's state of residence.

The fact is, in many cases, the difference in the laws does not make a difference in the outcome of the case. Many proposed moves would be approved by the court, regardless of which parent has the burden of proof. Conversely, many proposed moves would be denied, either way. However, if each parent has a solid basis for their position on the issue, and the case is a "close call," the change in law can have an impact on whether or not the children are allowed to move.

When parenting neutrals are appointed to make recommendations on out-of-state moves, they are required to base their recommendations on what is in the child's best interests (not on what might be in the best interests of one of the parents). Under the previous law, the parenting neutrals would consider primarily whether there were drawbacks to the move and whether the purpose of the move was to interfere with the other parent's relationship with the child. Now, the focus is on whether the move is compelling enough, from the standpoint of the child, to be worth the upheaval involved in the move.

Another recent development is the court order that makes a parent's custody conditional on the parent remaining in Minnesota. A parent is free to move where they please, but that does not go for the child too. There is a growing incidence of the court awarding custody of the children to one of the parents, subject to the provision that if that parent decides to move out of Minnesota, custody would be transferred to the parent remaining in Minnesota.

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Categories : Child Custody

Why Family Law Mediation Is a Good Idea

Posted by Gerald Williams

· April 19, 2009

· No Comments

Family law mediation is a forum in which a neutral party (the mediator) meets with parties to help facilitate a settlement of the disputed issues or, in the alternative, to rule out settlement exhaustively, and help the parties reach an impasse. The mediator has no authority to make a decision or impose something upon one of the parties against their will; and the process is confidential.

There are three basic reasons that family law mediation is a good idea.

First, if the mediator is successful in facilitating a resolution, the case concludes without protracted litigation.
Second, most family court judges will insist that there be efforts to settle the case out of court before proceeding with trial.
Third, it is a helpful trial preparation tool.

It is important to note that the latter two reasons are applicable if mediation is unsuccessful, that there is more to proceeding with mediation than getting the case settled. If you appear before the family court for trial, you are likely to be in better standing with the family court judge if the judge knows that the court’s decision is necessary, and the dispute is compelling enough not to have been resolved in mediation. The impasse reached in mediation is more meaningful than the impasse reached when a couple with communication problems stops speaking to each other.

Finally, for purposes of trial preparation, mediation allows the courtroom disputes to be narrowed, and more sharply defined. The confidential communications, while inadmissible in court, do provide some insight about the strengths and weaknesses of your case and the opposing party’s case. The family court judge who decides the case is likely to navigate through similar logic, questions and considerations that play out in the mediation sessions. The trial of a case in which mediate was unsuccessfully attempted is more effective for the parties and the court than a trial proceeding that transpires from “square one.”

No Comments

Categories : Divorce, General Family Law, Mediation

Financial Attrition

Posted by Gerald Williams

· April 7, 2009

· 1 Comment

The goal of family courts is to render court orders (or approve parties' stipulations) that address a child's best interests (regarding custody and parenting time) or a fair and equitable settlement (regarding property and finances). In the process of a family law dispute, one would like to think that both sides have a solid basis for their arguments, and that if the dispute persists through the court process, that it is the result of good faith and meritorious claims. Or, if the dispute does not persist through a contested court process, that it has to do with one party having a clearly stronger claim as to the child's best interests, or what is fair and equitable in the circumstances.

Unfortunately, in some instances, the outcome of the dispute is based on something that is not connected to a child's best interests or what is fair and equitable. Instead it is based on financial attrition. That is, on one party having the financial means to pursue the dispute, regardless of the merits of that party's position, while the other party lacks the means to advance their argument. If one party has the funds to hire an attorney to proceed in the dispute (with or without a solid basis on the merits) and the other party does not, the result will not necessarily be proper justice.

As an example, if a parenting neutral recommends a certainly custody arrangement or parenting plan, and one of the parties is aggrieved by that recommendation, that party may hire a custody expert to contest the neutral recommendations. Usually, a party cannot do that without substantial financial investment. Oftentimes, when someone challenges neutral recommendations, while they may have the financial means to hire the expert, the facts and circumstances do not warrant overturning the neutral recommendations. Yet, the party favored by the recommendations may lack the financial means to defend against the challenge of the aggrieved party. The outcome of the dispute may be different from what is truly in the child's best interests, simply because one party had funds to fight, and other party did not.

There is an "up" side to financial attrition, as well. Someone who lacks a good-faith argument for their position, but also lacks the means to advance the argument, is foreclosed from manipulating the court process to gain unfair advantage.

What makes the issue of financial attrition even more complex is this: sometimes an argument clearly has good faith, or clearly LACKS good faith, but other times, it is not so clear. And someone may think their opponent is acting in bad faith, but the family court judge sees it differently. Also, oftentimes, it is clear that one party has substantially greater means than the other; but not always. (Someone with multimillionaire parents theoretically has the means to invest substantial sums in a family court dispute, but not if the parents are unwilling to contribute to the effort.) Even less clear is whether the party with greater means has a misguided agenda (as opposed to an argument based upon genuine good faith).

In the end, financial attrition may be in the eye of the beholder. Whether real or perceived, it is an unwelcome factor in the family court process.

1 Comment

Categories : General Family Law

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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.