Minnesota Divorce and Family Law Blog

Same Sex Divorce in Minnesota - Part 2

As a followup to my November blog post about gay divorce, it is interesting to note Minn. Stat. Section 517.03, which dates back to 1997, and reads as follows (note the italicized parts):

(a) The following marriages are prohibited:

(1) a marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final, as provided in section 518.145 or by the law of the jurisdiction where the dissolution was granted;

(2) a marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;

(3) a marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures; and

(4) a marriage between persons of the same sex.

(b) A marriage entered into by persons of the same sex, either under common law or statute, that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.

It is also interesting to note Minn. Stat. Section 517.20 (italicized in its entirety):

Except as provided in section 517.03, subdivision 1, paragraph (b), all marriages contracted within this state prior to March 1, 1979 or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.

Section 517.20, which dates back to the late seventies, modified the requirements for marriage licenses, and "grandfathered in" all previous Minnesota marriages and all valid out-of-state marriages.  It is interesting to note (and frankly, somewhat troubling) that the 1997 legislature not only banned gay marriage but pre-empted the "grandfathering" of out-of-state gay marriages.  

Aside from the politically charged issue of strictly limiting the defininition of marriage, the legislation creates problems for cohabiting couples, their children, their attorneys, family court judges and other related professionals.  If gay couples marry elsewhere, move to Minnesota, and then break up, their children do not deserve the uncertainty that is brought about by not falling within the purview of typical family law cases.  Nor does the financially dependent party to the breakup deserve the uncertainty involved in co-ownership of homes, cars, bank accounts and the co-responsibility on mortgages, leases, debts and credit cards.

There will necessarily be some progress and evolution in the enforcement and amendment of these laws, and the promulgation of other laws, to address these situations over time. 

Irretrievable Breakdown of the Marriage

Under Minnesota law, the statutory basis for dissolving a marriage is one spouse's (or both spouses') assertion that there has been an irretrievable breakdown of the marriage.  It is important to note that it is not required that both spouses assert that the marriage cannot be saved.  

In many cases, one spouse wants to end the marriage, but the other spouse would like to save the marriage.  In one sense, the Minnesota statute reflects a certain reality: if both spouses are not firmly invested in the preservation of the marriage, the marriage cannot survive.  In other words, the marriage cannot be sustained if either spouse has one foot in, and one foot out of, the marriage.  If one spouse makes the assertion of irretrievable breakdown, the other spouse can refrain from admitting it, but cannot keep the divorce from happening.  

What the statute actually reflects is the no-fault grounds for divorce that accompanied the abolition years ago of fault-based grounds for divorce, such as adultery, abandonment or cruelty.

 

Same Sex Divorce in Minnesota

Now that gay marriage has been legalized in some states, the time has come to tackle the issue of gay divorces.  There is some debate in the legal community about how (or even whether) same-sex divorces should be handled in Minnesota.  Minnesota law provides that a person who has resided in Minnesota for 180 days is entitled to dissolution of their marriage.  Since my practice involves substantial interstate and international cases, I encounter cases of married couples whose marriages, or the solemnization of their marriages, would not be recognized under Minnesota law, but whose divorces fall under the jurisdiction of the Minnesota courts based upon residency.  Gay marriages presumably can be (should be...must be...) handled similarly.  

The problem with not rendering divorces of valid same sex marriages is two-fold.  First, the same potential constitutional issues that loom over prohibiting gay marriage, pertaining to the unequal treatment of same-sex couples versus opposite-sex couples, loom for refraining from proceeding with gay divorces.  Second, the enforcement of bigamy laws is complicated greatly by refusing to provide a divorce to a legally married couple.  (As an example, if a Minnesota resident is validly same-sex-married, separated from his or her partner, unable to get a divorce, and prepared to marry someone of the opposite sex, they may or may not be in the process of committing bigamy.)  

Other options for gay couples include prenuptial contracts and bifurcated court actions. Prenuptial contracts required the couple's attention BEFORE solemnizing their union, but could define the parties' respective rights in the event of a termination of the relationship.  Bifurcation court actions would result if the couple has children (issues pertaining to whom must necessarily be addressed in family court) and the parties resort to civil courts for financial and property issues.

My expectation is that eventually the distinctions between gay and straight divorces will become outmoded, and it is a matter of when (not if) same-sex couples will come to handle their divorces in the same manner as opposite-sex couples. 

 

 

 

Readeo

One way that the internet helps connect a child and a parent who do not live together is a web service called Readeo.  Essentially, Readeo (www.readeo.com) is a bedtime story over the internet.  Both the parent and the child can see and hear each other, and either one can turn the pages of the book they are reading.  

The book-chat requires a webcam, high-speed internet, and a subscription. Through the service, users are able to access a vast book library.

For children, it's a step beyond Skype or video chatting, because it engages children of a young age in the interaction with a family member who lives elsewhere (regardless of how far away the family member lives).

Many parents have been given the right to telephone contact or video chatting only to have their time with the child cut short because the child is bored, shy, or put on the spot.  For many kids, the storytime element will boost their attention and enthusiasm for the social connection.  The service is also well-suited for military families and out-of-town grandparents and other relatives.

I am hoping that anyone who has used Readeo will post a review or anecdote their experiences with the service. 

Dividing Retirement Interests in a Divorce

It is important to consider some distinctions in retirement interests and the way they are divided in a divorce.  A Qualified Domestic Relations Order (QDRO) is commonly needed so that both spouses can have separate interests in a retirement account without problems associated with tax penalties and early withdrawals.

The QDRO process involves the two spouses, their attorneys, the court and the plan administrator. Sometimes, an additional person is involved, if the attorneys outsource the drafting of the QDRO to a third party.  Each party and their attorney must approve a QDRO draft, the court must sign it, and the plan administrator must pre-approve (early in the process) and implement (late in the process) the QDRO.

Oftentimes, the asset that is divided by the QDRO is a 401(k) account or pension that neither party plans to tap into for many years.  In that case, the time involved in processing a QDRO is of minimal concern. However, when one or both parties needs to liquidate some retirement funds to pay debts or purchase a house, it is a problem that the process takes so long.  The benefit of the long process, though, is the ability for the spouse receiving a share of the other spouse's account to cash out their share without tax penalty.  

When the parties are dividing an IRA (individual retirement account), a QDRO is not necessary.  The bank should implement the division as set forth in a court-signed decree.  If one or both parties cashes all or part of the account, most of the time, there is an early withdrawal penalty.

Consequently, the division of an IRA provides a time advantage, but a tax disadvantage; and the division of a 401(k) or pension provides a tax advantage, but a time disadvantage.

 

 

Annulment in Minnesota

If you want to terminate your marriage, you need a divorce.  If you want to nullify the marriage, you need an annulment.

Under Minnesota law, a marriage can be annulled under the following circumstances:

(a) One spouse lacked the mental capacity to consent to the marriage at the time of the wedding, unbeknown to the other spouse;

(b) One spouse lacks the physical capacity to engage in sex, unbeknown (at the time of the wedding) to the other spouse;

(c) One spouse, or both spouses, lacked the capacity to consent to the marriage at the time of the wedding because of the influence of alcohol, drugs, or other incapacitating substances;

(d) One spouse's consent was obtained by force or fraud (although this basis for annulment does not apply if the defrauded spouse later lives with the other spouse voluntarily); 

(e) One spouse, or both spouses, were not 16 years of age or older at the time of the wedding, and if under the age of 18, did not have consent of his or her parent or guardian. 

It is important to note that the family court has discretion to fairly divide assets and liabilities in annulment cases, as in divorce cases; so the decision to annul the marriage - versus to dissolve the marriage - does not affect the property settlement.

Moreover, in certain cases, one spouse may dispute the grounds for annulment but be unable to dispute the grounds for divorce, since a marriage can be dissolved under Minnesota law if one spouse declares an irretrievable breakdown of the marriage (a somewhat subjective standard that is satisfied by one spouse's assertion to the family court that the marriage cannot be saved).  If the grounds for annulment can be effectively disputed by one spouse's counterargument, the spouse desiring to end the marriage may be best served by seeking to dissolve the marriage, rather than nullify the marriage.  

 

 

Joint Physical Custody is a Legislative Issue Again

In recent years there have been multiple attempts to create a legal presumption in Minnesota that a child should be in the joint physical custody of the child's separated or divorced parents.  This year, there is a bill that reflects a renewed effort to pass a "JPS law" in Minnesota.

What needs to be realized in the debate over a JPS law is not merely the importance of the presumption question, but also two very important issues: (a) how the presumption is rebutted and (b) the wide discretion of the family court.

The bill currently proposed to address JPS requires the court to award joint physical custody in a contested custody case unless one parent proves by clear and convincing evidence that the other parent is unfit in a manner that would cause substantial harm to the child.  The law's impact would be on cases where (a) the parties are not in agreement about the custody arrangement and (b) there is no compelling evidence that the child would be substantially harmed by joint physical custody.  Family court judges that would otherwise give one parent primary custody would be prevented from doing so, because the presumption would not be rebutted.

The implication of this is to substantially curtail the family court's discretion, which has repeatedly been ruled by Minnesota appellate courts to be very wide.  Minnesota family law holds a child's best interests to be a paramount consideration in contested family court disputes.  Oftentimes, it is THE paramount consideration.  This is antithetical to the notion of a presumption - particularly a presumption that can be overcome only by clear and convincing evidence.  Every family is different.  Every child of divorced or separated parents has a unique experience.  So the practical reality is that a presumed custody arrangement will have as many exceptions as it has cases that conform to the presumption.  The rule-or-exception quandary must be resolved in some way; consequently, the family court cannot be divested of the authority to make that determination.

Where the proposed law's equation breaks down is the application of a clear and convincing evidentiary standard to find "substantial harm" to the child.  When the establishment of joint physical custody is more important than preventing minor harm, or even moderate harm, to the child, the paramount importance of the child's interests necessarily gives way to a different philosophy.  The proposed bill expressly seeks to establish a new "public policy." The proposed public policy would necessarily alter the existing emphasis on the paramount importance of the child's best interests.  

In the end, with or without the proposed law, many children will be in the joint physical custody of their parents - for very good reasons.  And many will not - for very good reasons.  Nothing will change the wide discretion of family courts, because no public policy will alter the fact that families and children vary widely.  So even if the law passes, its most fervent proponents will be foiled by the diluted application of the term "substantial harm" to create custody arrangements that are more often the exception than the rule.  

 

 

Collaborative Law

Collaborative law is the practice of proceeding with a marriage dissolution without going to court (other than submitting a written stipulation settling all issues in the divorce).  The parties contract with each other and their attorneys to refrain from using the court process to litigate or contest disputes.  If the parties and their attorneys sign a participation agreement, it is understood that if either or both parties seek relief in court (other than processing the final, stipulated divorce decree), the collaborative attorneys will withdraw, and the parties will retain different counsel for the court proceedings.

The case proceeds based upon the negotiation of the parties, mediation or early neutral evaluation if a third party facilitator is needed, and an arbitrator or consensual special magistrate if there is a contested dispute in need of a binding decision.

When Collaborative Law first emerged in the 1990's, alternate dispute resolution (ADR) (such as mediation and early neutral evaluation) was not yet as commonplace as ADR is now.  During the last two decades, there has also been an increase in the availability of consensual special magistrates and arbitrators to provide for addressing contested disputes outside of court.  

One drawback to the collaborative process is that the process breaks down without a certain level of cooperation from both parties.  The parties and attorneys must reach agreement, where possible; identify the contested issues; and determine the forum and time frame for resolving the contested issues.  If one party wants to delay the proceedings, it is possible to manipulate the process to prevent forward progress.  In non-collaborative cases, an upcoming court date often provides incentive to move forward and deterrence from stalling. It is not clear what an effective incentive/deterrence is in collaborative cases.  Therefore, it is important that both parties in a collaborative case have equal (or at least, comparable) motivation to get the case done.

Reality and Truth...versus Fictional Reality and Engineered Truth

When you are involved in a family court matter, particularly a contested dispute in family court, reality and truth will serve you well.  Fictional reality and engineered truth will not serve you well.  The family court's goal is to make findings based in reality and truth; consequently, the party seeking to engineer the truth, or establish a fictional reality, is likely to lose the battle.

The family court can best learn the facts about a case by hearing the observations and recommendations of a neutral professional.  The family court can best be misled about the reality of a case by basing its findings strictly on the mud slung by the parties at each other in affidavits filed with the court.  When one parent wants to bring down the other parent, by filing affidavits of family members and neighbors, or bringing family members and neighbors into court to testify on the record, they are probably trying to establish a fictional reality - a reality that would not bear out if a neutral professional were to render their own observations.  If what family members and neighbors have to say really is the truth, then those facts can and should be borne out by the work of a neutral professional.

If you don't have the facts on your side, it can be an exhausting, expensive and fruitless task to try to pull one over on the court.  As an example, an abusive or chemically dependent parent, who pretends not to be, will likely be found out by the court.  On the flip side, if Parent A suffers from anxiety or depression, but Parent B brings in family members to testify that Parent A is in fact psychotic, Parent B is attempting to establish a fictional reality that should not prevail.  (Unfortunately, one who persists despite the fruitlessness creates protracted litigation that is costly to themselves, to the other party and to the family courts.)  If you do have the facts on your side, which often means not seeking unrealistic relief from the court, chances are the task of bringing out the truth will be less exhausting, less expensive and less fruitless.  

The need for the family court's reliance on neutral professionals is easy to understand when you consider what a small snapshot the court gets of a case's facts during the finite windows of time the court hears testimony.  If the family court relies on a subjective, skewed version of truth (even sincerely presented by someone speaking under oath), the court's ruling will not reflect reality.   

Subject to the occasional, unfortunate exceptions, a good family court judge will cast aside fiction and manipulation, and rely on a good neutral professional to bear out the reality and the truth of the case.   

Divorce is a Transition...Stay the Course

The process of divorce is often difficult.  The decision to get a divorce is often difficult. And once you've made the huge decision and begun the process, you are likely to want nothing more (and nothing less) than to be done with it.

One of the difficulties about the hugeness of the decision to divorce is that it may take a long time to reach the firm conviction that the marriage is at an end.  Most people find that they need to remain with "both feet" in the marriage until they have exhausted the prospect of saving the marriage.  But then, once there is a realization that the marriage is over, there can be the strong desire to be done with the divorce "yesterday."  In retrospect, people regret having given the marriage a shot for as long as they did.  

This can be a real problem with the financial aspects of marriage and divorce.  If you have "both feet" in the marriage, you are still entangled financially.  Once you decide to divorce, you are STILL entangled financially...until the process is complete.  While the divorce is pending, the process of getting unentangled financially can be miserably slow. The financial conflict one experiences with their spouse can seem like a hemorrhage that must be stopped, but cannot be stopped.

It is important to realize that the financial terms of the divorce will take shape eventually, but probably not as soon as you might wish.  Consider it as a "before" and "after" scenario, in which the "before" is living together as husband and wife, and the "after" is having the divorce complete and being unentangled regarding day-to-day finances.  It takes weeks, if not months, to get from the "before" to the "after."  That may result in three or four months more of "financial jointness" than you bargained for - the consequence of making a careful, and not hasty, decision to divorce.  In the long run, you will likely sleep better knowing that dissolving the marriage was your last resort, after pursuing all other options.  But the process, in the short run, is an extremely difficult and stressful experience.