Minnesota Divorce and Family Law

New Divorce Study

A new study on children of divorce has been mentioned in recent news headlines. Allen Li, of the Rand Corporation, evaluated children before and after their parents divorced, between 1979 and 2002. The more common methodology of past research had compared children of divorce to children in intact families.

Li's study drew upon a national sample of more than 6,000 children between ages 4 and 15, whose mothers were surveyed during the term of the study.

The fact that Li interviewed the mothers, but not the fathers, of the children is puzzling. The study is being described as something that could reframe the debate on divorce. There is nothing to suggest that the research lacks validity just because the responses came from mothers only. But the exclusion of fathers from the study is a striking gap.

If this study is considered an improved methodology over past research, it would appear that future research could improve upon this current research by gathering data from both fathers and mothers.

Changing Your Mind About Divorce

If someone starts a divorce action and then changes their mind about it, then the consequences depend on the intentions of the other spouse. If the other spouse wants the divorce to proceed, then the divorce will proceed. But if the other spouse does NOT want the divorce, then the divorce action is dismissed, and the parties remain married.

As an example, if the husband commences the divorce action by serving a Petition, the wife has the option of serving an Answer and Counter-Petition, or just an Answer. By including the Counter-Petition, the wife is asserting that she wants the divorce to proceed whether the husband changes his mind or not. If the husband withdraws the Petition, then the divorce will proceed on the Counter-Petition. If the wife does not include a Counter-Petition, she is asserting that she does not want the divorce to proceed if the husband changes his mind and withdraws the Petition. In that instance, if the husband withdraws the Petition, there is no action on which to proceed.

If the parties decide to reconcile after the divorce begins, the parties must work together to withdraw the action. And of course, if they decide to reconcile after the divorce is final, then their options are to remarry, or to live happily ever after, together and unmarried.

Getting a Divorce By Mail

In Minnesota, the family court will grant a divorce in certain cases without the parties coming to court to appear in person. If there are no minor children involved, the court will sign off on a stipulated decree (agreement signed by both parties) submitted by mail if the reviewing judge is satisfied that the stipulated decree appears to be fair to both parties. If there are minor children involved, the court may still sign off on a mailed stipulation if both parents are represented by counsel, and if the court is satisfied that the stipulation appears to be consistent with the child's best interests and fair to both parties.

If there are minor children involved and one or both parties has no attorney, the court will require one of the parties to appear in person. Similarly, if the court receives a stipulated decree in the mail and is not satisfied that it is fair to both parties, or is concerned that it is not consistent with the best interests of a minor child, the court will require one or both parties to personally appear.

In most cases, the family court will find that the parties' agreed-upon terms are, in fact, fair to both parties and (if a minor child is involved) consistent with the child's best interests.

Emergency Court Orders and Expedited Relief

If you want the court grant you relief, or order your spouse / ex-spouse / child's other parent to do something, the typical process takes several weeks. You must obtain a hearing date, file with the family court certain documents, send copies of the documents to the other party, and then wait for the family court to issue the order. Often, the court cannot offer a hearing date that is less than four to six weeks off. Add to that the amount of time the court requires to issue its order after the hearing, which can vary from several days to three months.

In emergency situations, the court will grant relief without that delay. Of course, the court must be moved with the compelling nature of the request to issue an expedited order. Domestic abuse orders for protection are granted in such circumstances. Emergency custody orders may result from abusive situations, or cases in which one parent is depriving the other parent of all contact with a child. Dire financial needs may also be addressed with an expedited order.

It is important to consider the fact that the family court is unwilling to grant expedited relief in all but the most compelling circumstances. The family court sees dozens of cases each week, and unfortunately, most people in need of expedited relief must nevertheless wait several weeks for the court to issue an order.

Joint Physical Custody Presumption Subjected to Study

Today there was a committee hearing at the Minnesota Legislature on a proposed bill to enact a presumption in favor of joint physical custody. The bill would establish a rebuttable presumption that joint physical custody is in the best interests of a minor child. (Minnesota law already has a presumption that joint legal custody is in the best interests of the child, if one or both parties requests it, except in cases of domestic abuse.)

The committee heard testimony from supporters of the measure, who are pushing for family law reform due to their claims that noncustodial parents are not treated fairly in Minnesota family courts. The committee also heard testimony from opponents who expressed concern that a presumption of joint physical custody would have an adverse impact on domestic abuse victims, place children in the middle of conflict, and would be based upon a misunderstanding of the current state of the law, which does not contain a presumption AGAINST joint physical custody nor a presumption in favor of sole physical custody.

As a practicing divorce attorney for many years, my clients include both mothers and fathers; custodial parents and noncustodial parents; victims, perpetrators, and falsely accused perpetrators, of domestic abuse. The fact is, currently, many family court orders award joint physical custody, many orders grant sole custody to dad, and many orders grant sole custody to mom. There is a growing trend to avoid the label of physical custody altogether, and use parenting plans and/or alternate terminology. A presumption of joint physical custody will not help the family court system.

Joint physical custody should not be confused with co-parenting. It is not necessary for a child's parents to have joint physical custody in order for the child to have a healthy relationship with BOTH parents. It IS necessary for the child's parents to properly CO-PARENT (or to have the active involvement of parenting neutrals). But joint physical custody is not indispensable, and for many families, would actually INCREASE the conflict that the child experiences, instead of lessening the conflict.

The bill, which makes exceptions to the proposed joint physical custody presumption in cases of domestic abuse, would require a court to make detailed findings to overcome the presumption and order something other than joint physical custody. So the proponents of this bill are seeking to have the family court forum be a place where courts decide whether someone should NOT have joint physical custody and make detailed findings about why NOT. The family courts - with which many individual committee members recounted their own personal, bad experiences - are already a forum that seems rife with negative energy. Yet what is proposed is for the presumption to be joint physical custody, and for all the focus of contested custody proceedings to be what these parents are NOT doing right in order NOT to be awarded joint physical custody. It adds more misfortune to what is, for many, the most unfortunate experience of their lives.

Moreover, either parent may be willing to allow the other parent to have sole physical custody, but not when faced with a presumption in favor of joint physical custody. They may be unwilling to "opt out" of the joint physical custody presumption (even though they would otherwise not fight for joint physical custody) figuring that they would appear to be turning their back on their child. Again, for many families in transition, the focus needs to be on REDUCING THE CONFLICT, not landing a coveted label of "joint physical custody". In many instances, temporary or permanent custody arrangements other than joint physical custody are in the child's best interests.

One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Ultimately, this afternoon, the bill proposal was amended (i.e., compromised) to refer the issue of a joint physical custody presumption to a study group, to explore the family court processes, and determine what steps need to be made to improve the system. Many of the committee members expressed disappointment that such an action was, in fact, a failure to act. In my humble opinion, the bigger failure would have been enacting a joint physical custody presumption.

Pension Money: Property or Income, not Both

When someone getting divorced has a retirement benefit or retirement income, their spouse may want to receive part of it as alimony. However, at the time of the divorce, the value of the pension interest is typically divided between the parties as part of the property settlement in the divorce. So an issue may arise as to whether to characterize the pension value as property or as income.

Take, for instance, a case where the husband gets the pension and, in consideration of that, the wife get the house. In that instance, the pension is part of the PROPERTY settlement, and is not considered income. If the wife seeks alimony from the husband, his money from the pension should not be factored into the determination of alimony. It would not be fair for him to pay alimony from his share of the property settlement when he will not, in turn, receive any of the equity in the home.

On the other hand, if the pension is NOT divided between the parties, for instance, because the husband is already receiving his pension payments at the time of the divorce, then the pension is INCOME, rather than property. Since the value of the pension is not part of the property settlement, the money received from the pension plan MAY be considered in the determination of alimony (also known as spousal maintenance).

When One Attorney is Involved in a Divorce

In Minnesota and most other states, one attorney cannot represent both parties in a family court proceeding. (Do not be misled by the movie Juno!) Yet it is common for divorces to happen with only one attorney involved. When one attorney is involved, that attorney represents one of the parties; the other party waives counsel.

This situation begins with the premise that both parties are entitled to have an attorney. Commonly each party has an attorney representing them, and advising them regarding their interests. Along with the right to counsel comes the right to waive counsel. If both parties are unrepresented, both are waiving their right to counsel. (In many instances, a party who waives counsel will have consulted - but not retained - an attorney.)

If one party is represented, the other party can choose not to have an attorney. But the party who chooses not to have an attorney should not look to the other party's attorney for legal advice or guidance as to whether or not to accept a settlement proposal. An attorney involved in the process should provide representation and advice to only one party.

Serving the Petition Starts the Divorce

When someone wants to start a divorce proceeding, they need to formally serve process upon the other party. The divorce proceeding does not start because the couple has separated or because a court file has been opened. When the responding party receives the divorce petition from the initiating party, the divorce is officially pending.

Formal service of process is accomplished simply by handing the documents (Summons and Petition) to the responding party. It must be performed by an individual, age 18 or over, who is not a party to the proceeding. A spouse cannot serve their own spouse with the divorce papers. Typically, a courier, neighbor or family member serves the documents; these days, the involvement of a sheriff's deputy for this kind of service is rare.

Alternatively, the responding spouse may admit or acknowledge service. The Admission of Service, which must be in writing, makes it unnecessary to involve a third party. Oftentimes, the initiating party will mail the documents to the responding party with a blank Admission of Service for the responding party to sign and return in the mail.

Recognition of Parentage

When a child is born to a couple that is not married, it is important for both parents to sign off on a Recognition of Parentage form, for custody and parenting time purposes, as well as for child support purposes. A father's right to custody or parenting time is established easily by a Recognition of Parentage, whereas without a Recognition of Parentage, the father is more likely to need genetic proof of paternity.

If a married couple separates, each party has the right to custody and parenting time by law, due to the marriage. If an unmarried couple with a child separates, the Recognition of Parentage provides a basis for determining custody, parenting schedule and child support issues. Without the Recognition of Parentage, determination of those issues is delayed while parentage is proven unless the parties both agree not to contest parentage.

Home Alone 2: I Want the House

When a wife and husband no longer want to be married, it can be assumed that they no longer want to live together. However, the economic reality is that maintaining two households is substantially more burdensome than maintaining one. In many instances, separated couples remain living together, against the will of one of the parties. That is to say, one spouse (or both) wants to stay in the house, and get the other spouse to move out. But the "unwelcome" spouse stands their ground, and refuses to move out.

Neither party can exclude the other from the house without a court order. If the issue comes before the family court, the judge is likely to work out an arrangement whereby the couple is not living together. The family court judge will want to avoid the potential that the couple's "peaceful coexistence" will deteriorate into something less peaceful, particularly if children are involved.

But the court will also balance the interests of safety and diffusing tension against the economic considerations. Those considerations include avoiding the burden of maintaining two households, if at all possible, particularly if the house must be sold. In many cases, long-term necessity requires selling the marital home so that both spouses can downgrade to something more affordable.