By statutory definition, “physical custody” means the routine daily care and control and the residence of the child. In practice, the physical custody label is not as important as it seems. “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between the parties. In some sense, the routine daily care and control and the residence of the child is structured between the parties whether one or both parties have physical custody.

Moreover, the distinguishing factors of having “sole” physical custody have been largely extinguished over the years. Under previous law, the parent with sole physical custody could change the child’s state of residence unless the noncustodial parent prevailed in court to prevent the move. Under the previous version of the law, the noncustodial parent had the burden of proof, and the court would allow the move unless there was a compelling reason not to allow the move. Under current law, it is the reverse. A parent, even a parent with sole physical custody, must have the consent of the other parent (or the court’s permission) to change the child’s state of residence. The moving parent has the burden of proof in court and the court will not allow the move unless there a compelling basis to allow the move.

Under Minnesota law, there are two ways a parent can have custody of their child(ren): legal custody and physical custody.

Legal custody does not pertain to where the children live or how the children’s time is allocated between each parent’s home. Legal custody pertains to the sole or joint authority to make decisions for a child regarding academic, religious and medical decisions.

It is presumed that two parents will share legal custody (“joint legal custody”) and usually one parent will have “sole legal custody” only if both parents agree to this, or if there is an express reason why one parent should not have joint legal custody.

Many separated and divorced couples who have a high level of conflict will not fare well sharing joint legal custody. But in many cases, high conflict does not necessarily correlate with joint legal custody being problematic. Sometimes there are parents who argue about finances or parenting schedules or any number of issues, but they do not have disagreements about academic, religious and medical decisions. Attending the neighborhood public school may be a no-brainer. One parent may not have strong feelings about the child’s religious upbringing, which allows the other parent to proceed uncontroversially with the child’s involvement in religious activities. And parents who otherwise bicker may not have disputes about medical care because they both trust the child’s pediatrician.

In Minnesota, child support is on a mathematical grid that factors in each parent’s income and the parenting schedule. That mathematical grid actually results in a statutory calculation of child support in the amount of zero when (a) parenting time is equal; and (b) the parents’ income are equal. Minn. Stat. § 518A.36, subd. 3.

What if parenting time is equal, and the parents’ incomes are almost equal? The more disparate the incomes, the higher the child support. The closer the incomes, the closer to zero.

It is worth bearing in mind that this pertains only to basic child support. There still may be the need to settle up on the parents’ respective contributions to health insurance. So in many cases in which the parents’ incomes are almost equal – but not equal – and the higher earning parent is also covering the children’s health insurance, it can be agreed upon as a wash.

That is, the lower-income parent owes some medical support to the other parent, but the higher-income parent owes some basic support to the other parent. The two figures will offset each other, and it may result in a small enough difference to just agree on canceling out each parent’s respective obligation.

Discovery is the process of requesting and providing information in a divorce. Of course, requesting information from the other party is relatively easy. Providing information to the other party is more complicated, because you are the one responding. You may feel like the requests for your personal information are invasive and unnecessary.

The general rule is that the court will allow any and all discovery that is arguably relevant. So when you are in the process of responding to discovery there are three categories, and one of them is not whether or not you want to provide the information.

The three categories are: (a) what is requested does not exist or apply; (b) what is requested does exist and you have it handy; and (c) what is requested does apply, but you do not have it handy.

If the request is made for you to provide all documentation pertaining to real estate that you own, and you do not own any real estate, then it is an example of Category A. If you do own real estate, then an example of Category B may be your most recent tax statement, your most recent mortgage statement and maybe even the settlement statement on your purchase of the residence. An example of Category C might be an appraisal of your house, or the Realtor’s recommendations for what needs to happen to prepare the house for sale.

The best way to begin tackling your responses to discovery is to follow up with your attorney (if you have one) or the other attorney (if you don’t have one), or the other party (if neither of you has an attorney) with a rundown of the three categories: (a) what is not applicable; (b) what is handy; and (c) what is going to require some time and effort to produce. The sooner you address this with your attorney, the other attorney or the other party (as the case may be), the better.

One requirement of petitions for marriage dissolution (divorce) in Minnesota, as well as divorce decrees, is to confirm on the record that the wife is not pregnant.

If the divorcing couple is two women, then the petition and/or divorce decree must, and can, confirm on the record that neither spouse is pregnant.

If the divorcing couple is two men, then it is not necessary to address the issue of pregnancy.

But what if one or both parties are transgender or non-binary? And isn’t it also legally relevant if one of the spouses (cisgender or otherwise) is an expectant parent?*

First, the question about transgender or non-binary spouses: addressing this issue as whether someone is pregnant or not pregnant unnecessarily boxes them into a cisgender or binary identity. The relevant issue is whether there is an unborn child of the marriage that is being dissolved.

As for the other issue, if someone is expecting a child, they may be pregnant with that child, or they may be the parent of that child. For purposes of the record in a divorce case, the relevant issues are (a) whether there is an unborn child of the marriage; and (b) whether there is an unborn child not of the marriage. If one party is pregnant, then the baby may be the other spouse’s child, or someone else’s child.

In the case of a husband and wife, where the wife is pregnant and the husband is not the father, that will be given attention in the divorce petition and the divorce decree. If the husband is an expectant father of a child not of the marriage, does that deserve less attention than a wife’s pregnancy?

In the end, it would make most sense for “expecting” to be a suitable term referring to anyone who is pregnant or who is an expectant parent. Further, it would make sense for a divorce petition and a divorce decree to confirm that (a) neither spouse is expecting; or (b) there is an unborn child of the marriage; or (c) that there is one spouse (or both) who is an expectant parent of a child not of the marriage.

*I would be inclined to use the word “expecting” for someone of either gender or any identity, but my internet search indicates that such usage is technically incorrect. Either the usage needs to be expanded, or there needs to be a proper term coined.

The subject of reconciliation is a topic to be addressed with counselors and therapists, not attorneys. Nevertheless, the subject does often come up when I am conferring with clients.

The law of divorce is akin to the natural law of the universe, which is that it requires only one spouse to declare under oath that the marriage is irretrievably broken. Not two. The way in which “real life” matches the law is that if one spouse is not “in” – or even if one spouse has “one foot in” and “one foot out” – that is a potentially irreversible crack in the constitution of the marriage.

That is not to say that all is lost. And my job as a divorce lawyer is not to cheer on the breakup. (It is to proceed forward from the point that the breakup has happened.) So if there is hope to save the marriage, those efforts should be made.

This is where the therapeutic expertise comes in. I cannot speak to how spouses reconcile. Marriage counselors would be better suited to speak in detail about how reconciliation works (and doesn’t work). This is what I can say, though, from my perspective as a divorce lawyer. If you take what romantic energy got a couple together in the first place, it takes twice as much – maybe four times as much – of that “mojo” to get the couple back together after a “crack” has occurred.

It is fair to say that I hear about more unsuccessful attempts at reconciliation than successful ones. But I get the impression that many unsuccessful attempts at reconciliation come from unrealistic expectations that patching things up should not be difficult. For reconciliation to work, not only do both spouses have to be “all in” with both feet; they both need to do so with a great deal of sincere and genuine effort.