Minnesota Divorce and Family Law Blog

Marital Interest in Real Estate

When a married couple owns a home, both spouses have an interest in the home, whether or not the house is titled in both spouses' names.  So if one spouse lives in a home for two years before the marriage, then gets married, the other spouse's name does not need to be added to the title for both spouses to have a marital interest in the home.  

The marital interest in the home stems from the money the spouses put into the home during the marriage, as well as any market appreciation in the home during the marriage. The spouse who owned the home before the marriage has a nonmarital interest in the house based upon the value of the home at the time of the marriage.  The home is presumed to be marital unless and until the spouse with a nonmarital interest proves his or her premarital ownership, and the value of the house at the time of the marriage.

Paternity Presumptions

Minnesota law provides for certain paternity presumptions that govern when there is a dispute over paternity.  When a child is born to a married woman, the mother's husband is presumed to be the father. When a child is genetically linked to a man, the man is presumed to be the father.  

In cases in which the husband is not the genetic father, the case may hinge on who seeks to be the father. If the mother of the child separates from her husband, the genetic father may be adjudicated the child's father without opposition from the husband.  If the mother of the child reconciles with her husband, the husband may be adjudicated the child's father without opposition from the genetic father.  

If both men seek to be adjudicated the father, the case may hinge on the family court's weighing of the facts and circumstances, to determine what is in the best interests of the child.

Grandparent Visitation

Generally, a grandparent's right to see their minor grandchild is derivative of the child's parent's right to parenting time.  That is, the maternal grandparents have access to the child during the mother's parenting time, and the paternal grandparents have access to the child during the father's parenting time.  In most cases, grandparents do not have the separate right to their own visitation unless their child, who is the parent of the subject minor child, is deceased.

However, Minnesota law does provide for the family court to award visitation to a grandparent if the court finds that such visitation would be in the best interests of the child and would not interfere with the parent-child relationship.  The statute expressly directs the court to consider the amount of personal contact between the petitioning relative and the minor child prior to the application for relief.

Overnight Parenting Time with Infants and Toddlers

When parents have disputes about parenting time in cases involving infants or toddlers, the issue of overnights often arises.  In 1999, the Minnesota Conference of Chief Judges approved a "Parental Guide for Making Child-Focused Parenting Time Decisions," prepared by the Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement. 

Regarding infants and toddlers, the Guide states (as follows in italics):

Parents of infants should establish a parenting time schedule that is consistent, predictable,and routine in nature.  Depending upon the noncustodial parent's availability and caregiving history, the noncustodial parent of an infant should have short (one to three hour) but frequent (two to three times per week) parenting time during the day or early evening.  As the child grows from infant to toddler and becomes more comfortable with separation from the custodial parent, the duration of parenting time should increase.  For parents who live far apart, the noncustodial parent of an infant or toddler should travel to the residential area of the custodial parent.  This may mean that parenting time takes place in the home of the custodial parent or in a nearby location where the child feels comfortable.  It is important for parents of infants and toddlers to establish one nighttime caregiver.  Overnight and extended parenting time may not be appropriate for infants and toddlers.  However, children who are able to make smooth transitions between homes, or who have older sisters or brothers to accompany them on parenting time, may be comfortable with overnight and extended parenting time. 

In practice, one key fact regarding this issue is whether the young child has or has not already experienced overnight parenting time.  If the child has not yet transitioned to overnights, then the above recommendations are more applicable than cases in which a child has already experienced overnights at the non-custodial home.  In other words, the above recommendations cannot be readily invoked to halt overnight parenting time that has already been instituted, particularly if the child is showing no signs of maladjustment to the overnight parenting time.  

Another key fact in the practice of implementing parenting time with very young children is the level of cooperation that it requires between the parents to implement frequent and consistent contact between the child and the non-custodial parent.  In many cases, the parents are dealing with the parenting time arrangements of an infant or toddler shortly after their breakup.  While the angst and bitterness of the parents' separation may diminish with time, in the interim, it is necessary for the parents to coordinate the parenting time arrangements in the best interests of a child whose age and developmental stage makes that particularly difficult to do. 

Birdnesting

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.  

Selling the House in a Bad Market

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.

Child Support - The New Era of Income Shares

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.

Spousal Maintenance Factors

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 factors listed in the statutes are:

 

(a) 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; 

(b) 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; 

(c) the standard of living established during the marriage; 

(d) 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; 

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance; 

(f) the age, and the physical and emotional condition of the spouse seeking maintenance; 

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and 

(h) 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.

Moving Out of State With Minor Children

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:

(a) 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. 

(b) 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:

 

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life; 

(2) 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;

 

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties; 

(4) the child's preference, taking into consideration the age and maturity of the child; 

(5) 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.  

Joint Custody and Child Support

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.