New Child Support Law As Silent As Old Child Support Law Regarding Many Kid Expenses

· March 30, 2019

The new child support law that went into effect in August 2018 addresses basic child support, child care support and medical support, just like the previous law did. The new law also is silent about many of the children’s expenses – such as extracurricular costs – just like the previous law was.

The reason is simple. The child support statute provides for a monthly sum to be paid from one parent to the other. It contemplates that the children’s day-to-day living expenses will be properly covered by the parents once the monthly support obligation has been conveyed by the obligor parent to recipient parent. But what if they aren’t?

The new law calculates child support such that the more parenting time an obligor parent has, the less that parent pays to the other parent. So it stands to reason that the more parenting time an obligor parent has, the more that parent pays the kids’ day-to-day expenses in real time.

If the obligor has no parenting time, then there is no parenting expense adjustment downward with the expectation that the obligor parent covers other expenses. But if the obligor has parenting time, and therefore there is a parenting expense downward, the parents should probably have a mutual understanding and expectation regarding what contributions the obligor parent will make to day-to-day expenses, such as clothing, school lunches, and cell phones.

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Categories : Child Support

Gender Neutral Language Needed

Posted by Gerald Williams

· February 28, 2019

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Minnesota’s artificial insemination statute is in need of gender neutralization. Minnesota Statute Section 257.56 provides that “if…a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the biological father of a child thereby conceived.”

In the current age of marriage equality, this should read, “if…a woman is inseminated artificially with semen donated by a man not her spouse, the woman’s spouse is treated in law as if the spouse were the parent of the child thereby conceived.”

In the absence of gender-neutral language, if the spouse of the woman who is artificially inseminated is also a woman, she is required to adopt the child. As related in a Pioneer Press article authored by Dave Orrick, this creates unnecessary legal burdens that do not serve any useful purposes.

Here’s hoping that the Minnesota legislature remedies this problem so that other couples are not confronted with the same useless barriers.

https://www.twincities.com/2019/01/29/marriage-equality-lesbian-married-parents-actually-arent-treated-the-same-legally-as-straight-couples-will-it-change/?utm_content=fb-PioneerPress&utm_medium=social&utm_campaign=socialflow&utm_source=facebook.com&fbclid=IwAR2pIdhcRCuJ7NZZDVEI1w9i1T1nN9GFm2Kt1E0q1cxk-qTG1rMDNiurvVI

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Categories : General Family Law

The Role of Managed Mental Health Disorders in Family Court

Posted by Gerald Williams

· January 24, 2019

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When a separated couple is addressing a child custody dispute, and one of the parents has a mental illness, it is not uncommon for the other parent to try to use the mental disorder as a “trump card.” The underlying logic would be that a parent with a mental illness is “less fit” as a parent than one without a mental illness. The fact is, if a parent is struggling with mental illness, and not properly managing it by following the advice of professional care providers, a child may be adversely affected.

However, if the parent is properly managing their diagnosis and complying with the care recommendations of their psychiatrist and/or psychologist, the other parent may be off-base to try to use it as an advantage. Many mental illnesses are hereditary, so it may be problematic for children to hear one parent speak negatively of mental health challenges that the children may themselves confront.

More importantly, if a parent is properly managing their mental illness, that may present a positive – not a negative – as it pertains to good parenting. Meeting the challenge of addressing mental illness often requires a focus on all aspects of one’s health, and may provide better insight as a parent on how to model healthy behavior for one’s children.

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Categories : Mental Health

Obligation to Disclose Information in Divorce

Posted by Gerald Williams

· July 26, 2018

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Both parties to a divorce have an obligation to each other, and to the court, not to leave out relevant information. It is considered fraud upon the court to allow a divorce to be finalized without full disclosure, not to mention defrauding the other party, if failing to identify an asset would make a material difference to the terms of a divorce.

Consequently, the duty to disclose is not limited to responding to the other party’s requests for information. The duty to disclose includes identifying assets whether the other party affirmatively demands the information or not.

Conversely, if one party seeks information from the other party which the other party considers irrelevant, that does not mean that the information does not need to be provided. Even if the information is truly irrelevant, the refusal to provide the information will likely inflame the situation, and turn a request for irrelevant information into an unnecessary dispute.

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Categories : Divorce

Statutory Spousal Maintenance Guidelines May Be Coming to Minnesota

Posted by Gerald Williams

· June 7, 2018

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Statutory spousal maintenance guidelines, i.e. alimony, may be coming to Minnesota at long last. For years, Minnesota statutes have provided guidelines for child support, but not for spousal maintenance. That is to say, the statutes provide an actual formula for calculating child support, based upon income figures, number of children, and parenting schedules – a presumptive calculation that may deviated from upwards or downwards based upon the parties’ agreement or the family court’s judgment call. Having guidelines provides a higher level of certainty and predictability in marriage dissolution cases involving alimony, not to mention consistency across different courts. Without guidelines, you could take the same fact situation to ten different judges and get ten different determinations.

The statutes have not previously provided guidelines for spousal maintenance. Instead, there are factors for the court to consider in making a spousal maintenance determination, including the length of the marriage, income history, and the parties’ respective career circumstances. But there are no figures, or presumptions, to provide a range of likely possible outcomes.

In recent months, a committee from the Minnesota chapter of the American Academy of Matrimonial Lawyers (AAML) has developed a draft of potential legislation. One focus of the reform is to address how retirement factors into the expiration of spousal maintenance obligations. The current law presumes that there will be no spousal maintenance; or that there will be spousal maintenance for a specific period of time; or that there will be “permanent maintenance” which continues until one of the parties dies, the recipient remarries, or some other significant change of circumstances. A common change of circumstances, other than death or remarriage, is retirement. Yet the current law does not address retirement with any specificity.

The AAML draft legislation will be presented to the group Minnesota Alimony Reform, which was formed in 2016 at the behest of the Minnesota State Bar Association. From there, the legislation would potentially be picked up for consideration by legislators eager to respond to the call for spousal maintenance guidelines.

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Categories : Alimony / Spousal Maintenance

Discovery

Posted by Gerald Williams

· November 26, 2017

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When spouses and their attorneys exchange information in a divorce case, it is called discovery. Formal discovery happens mainly in the form of interrogatories, requests for production of documents, and depositions. Interrogatories elicit answers to questions; and the production of documents provides copies of statements and forms containing needed information. Oftentimes, there are the only two methods needed. A deposition (when someone is questioned on the record, in the presence of a court reporter) is used to follow up on answers to interrogatories, and production of documents, if needed; or to in place of the other two methods if someone is not cooperative. There are other methods, such as a request for admissions and authorizations for the release of information (from third parties), which can be enlisted as well to follow up, or as alternative avenues when someone is not cooperative.

Formal discovery follows certain time frames, such as 30 days to respond to interrogatories and requests to produce, and consequences that the court can impose if a party fails to comply.

Informal discovery dispenses with the formalities, and the fixed time frames, when the parties and their attorneys mutually agree to carry out the exchange of information cooperatively.

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Categories : Alimony / Spousal Maintenance, Child Support, Divorce

Right of First Refusal

Posted by Gerald Williams

· September 14, 2017

· 4 Comments

When separated co-parents establish the grounds rules for their parenting schedule, it is common to include a “right of first refusal.” The right of first refusal allows an “off-duty” parent to care for the child(ren) during the other parent’s parenting time if the “on-duty” parent is gone for a while. The “off-duty” parent is made aware, in advance, that the child will be in the care of a third party because of the “on-duty” parent’s absence, and given the opportunity to provide care instead of the third party.

The right of first refusal may apply to an overnight, or for a block of time, such as four (4), six (6) or eight (8) hours – whatever the parties agree to, or whatever is devised by the court or decision-maker.

One issue that often arises with the right of first refusal is the situation in which it applies to children’s spending time with grandparents or extended family. If the ROFR is applied strictly in every situation, then the children would theoretically never have sleepovers at a friend’s house, or long visits with grandparents. Conversely, a parent could circumvent the ROFR altogether if grandparents are deemed an exception to the ROFR rule, and grandparents live nearby.

Most commonly, the right of first refusal applies to avoid children being in the care of a babysitter when they could be with their other parent.

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Categories : Parenting Time

The Uncontested Divorce – Part 6 (Personal Property)

Posted by Gerald Williams

· July 27, 2017

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For many couples, it is easy to resolve the issue of “stuff.” Many items of personal property naturally “belong” to one party or the other, especially when each party is involved in different hobbies and leisure activities. Moreover, many items of personal property are easily replaceable or duplicated, such as pots and pans, towels and linens, and small tools and appliances.

Also, if the couple is already living in separate residences, they have already established their separate sets of possessions.

However, disputes over personal property can become the sticking point if emotions run high. If the divorce is bringing out the worst in the couple, and their conflict level, and if there are no children and no real estate to “fight over,” then arguing over unique furniture items or nostalgic memorabilia can cause problems.

The goal in an uncontested divorce is to be able to say when the final agreement is signed, that each party is awarded the items of personal property currently in his or her possession. And for the parties to be able to abide by that.

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Categories : Uncontested Divorce

The Uncontested Divorce – Part 5 (Real Estate)

Posted by Gerald Williams

· April 17, 2017

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Most uncontested divorces involve no real estate. If the parties own real estate, it is a potentially complicating factor. In fact, my earlier proposition (in The Uncontested Divorce – Part 1) – that an uncontested divorce may involve the parties selling the marital home and equally dividing the proceeds – has potential complications.

Dividing the net proceeds equally requires ascertaining what comprises net proceeds. In other words, what is subtracted from gross proceeds to arrive at net proceeds? Perhaps it is as simple as the amount “Paid to Seller” at closing. But perhaps it is not. Is either party owed some recompense for paying the mortgage since the parties decided to terminate the marriage? Were there (or will there be) any fix-up costs to prepare the house for sale?

So the primary proposition is solid. If there is no real estate, it is more likely to be – and remain – an uncontested divorce.

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Categories : Uncontested Divorce

The Uncontested Divorce – Part 4 (Spousal Maintenance)

Posted by Gerald Williams

· January 17, 2017

· No Comments

Most uncontested divorces are not long on duration. Less time married means less time to accumulate assets, debts and stuff (not to mention children). Therefore, there are less potential issues to cause disputes if the marriage ends. Conversely, most contested divorces involve long-term marriages; the long time spent together can make the break-up complicated and difficult.

Certainly there are case which buck this trend. A couple married for decades may manage to part amicably, including amicable terms for their divorce. And a couple married for a very short time may still have assets, debts or very young children to fight over.

Spousal maintenance (a/k/a alimony) is perhaps the most difficult issue in marriage dissolutions. The variation, case by case, is wild and wide. Property settlements tend to involve some semblance of an equal, or equitable, division of assets and/or debts. Child support is often based on a statutory formula. But spousal maintenance is subject to the court’s wide discretion based upon many statutory factors, and a lot of subjective judgment.

Cases in which neither party owes spousal maintenance most often involve three types of cases. One, a short-term marriage. Two, a break-up between two people whose earnings are pretty similar. Or three, a divorce in which neither party earns a high enough income to have the ability to provide financial support to the other.

In order for a case to be truly uncontested, there needs to be no need for the divorce decree to provide spousal maintenance. If there is the need to provide for spousal maintenance, then the parties need to address the tax consequences, the duration, whether the amount will step down over time, and various other issues. It simply complicates things for one party to provide spousal support to the other party after the marriage is over.

The fact that there needs to be spousal maintenance does not mean that the couple’s divorce will be inevitably long and painful. But it does rule out the prospect of proceeding with an uncontested divorce.

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Categories : Alimony / Spousal Maintenance, Uncontested Divorce

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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.

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