Minnesota Divorce and Family Law

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.

Home Alone

Yes, over the holidays I spotted the last scene of the movie Home Alone while switching channels. Who didn't? So, how old should a child be to be left home alone? One of the most common questions, especially when children are in the care of a single (and busy) parent.

A few years ago, I needed to address this question in an actual case when I was serving as parenting time expeditor for a divorced couple with one child. There is no law directly on point, so I contacted a child development professional. The answer was, as so often is the case: it depends. Different children have different maturity levels, and differing ability to handle the responsibility of being alone.

Five-year-olds are clearly too young. Most older teenagers are old enough be home alone. The issue arises most when there is a child involved between the ages of eight and eleven, which is the period of time during which most children grow old enough to be home alone. Also, when there are multiple children involved, parents may disagree on how old the older child(ren) need(s) to be to supervise the younger child(ren).

Ultimately, the resolution lies either in the parents' agreement about what is reasonable or, in the absence of agreement, the recommendation of a neutral professional.

Contempt and Jail Time

Obviously when one spouse or parent threatens to get the other spouse or parent sent to jail, things have gotten pretty ugly.  The family court judges do not get any special thrill sending a family court litigant to jail.  In fact, the family court system is set up to avoid jail time in most cases. 

It is important to distinguish the notion of jail in family court from the typical notion of jail (or prison) in criminal court.  In the case of a crime, one is sent to prison as punishment for a PAST transgression.   In family court, one is sent to jail as a MEANS of compelling FUTURE compliance and cooperation. 

For example, if a parent fails to pay child support, they can be held in contempt of court, but sent to jail only if the court finds that the parent has the ABILITY to pay child support and is refusing to do so.  The family court is required to set "purge conditions" which are the steps that a party can take to get out of jail, or avoiding going to jail in the first place. 

So, in the above example of a child support obligor, assume that the obligor has a monthly obligation of $400 per month, and $8,000 is past due.  The family court judge cannot send the obligor to jail for failure to instantly pay the $8,000 unless the court has reason (on the record) to believe that the obligor is ABLE to pay $8,000 instantly.  If the court finds that the obligor is unable to pay $8,000 right away, but IS able to pay $800 right away, and $800 per month thereafter ($400 for current support and $400 to go towards the past due amount), then the "purge condition" may be the $800 monthly payment. 

The family court may hold the obligor in contempt, sentence the obligor to 30 days of jail, but stay the imposition of the sentence while the obligor complies with the ordered $800 monthly payments.  If the obligor fails to pay $800 per month during the period of time that the past due support is outstanding, the obligor can be hauled into court and sent to jail.  In this instance, the obligor's failure to pay $800 per month is willful on the part of the obligor, and not beyond the obligor's control. 

When the obligor is given the jail sentence, it is not so much for the past transgression of failing to pay child support as much as the present or future transgression of failing to do the obligor is found to be capable of doing to become current on the obligation. 

Formal Discovery Versus Informal Discovery

Discovery is the process of obtaining and providing information in the family court proceeding.  The formal process of discovery includes interrogatories; requests for production of documents; and depositions.  Interrogatories are questions or demands for information that must be answered in writing.  Requests for production of documents involve providing copies of documents such as bank statements, asset verifications, tax returns and real estate records.  Depositions are oral proceedings in which the person answering questions is providing sworn testimony, and the questions and answers are placed on record by a court reporter. 

In many cases, it is not necessary to proceed with formal discovery, if there is enough cooperation between the parties and their attorneys.  In divorce cases, the parties are required by law to disclose relevant information so as not to defraud each other (or the court) in arriving at a fair and equitable settlement.  Consequently, it is often possible to streamline the exchange of information in a manner that is mutually beneficial and economical. 

Informal discovery typically happens by letter, or by meeting in person, or both.  The person providing information furnishes sufficient detail and supporting documentation in a manner that obviates sworn testimony at a deposition.  The person on the receiving end, in following up and requesting additional detail or additional documentation, often does not need a great deal of the information that would be part of the formal discovery process.  The exchange of information is tailored to the specific claims and relevant circumstances of the case, instead of the "fishing expedition" that the formal discovery process is characterized as by many lawyers and judges.

Child Custody Neutrals

If divorcing or separating parents disagree about child custody or parenting arrangements, it is likely necessary for a neutral professional to be involved in resolving the dispute.  The most common neutral professionals are custody evaluators, guardians ad litem, parenting time expeditors, custody mediators and parenting consultants. 

Custody evaluators investigate the facts and circumstances surrounding the child's situation, and render a written report with observations, comments and recommendations.  Typically the custody evaluation takes three to four months.  The custody evaluator will interview each parent; meet with the child (usually at least once in each parent's care); and contact collaterals such as family members, teachers and medical professionals.  The custody evaluator does not have the authority to make a final decision, but his or her recommendations are given substantial weight when the court makes that decision.  The custody evaluator does not stay involved in the case beyond the point that the custody report is issued.

Guardians ad litem are appointed to represent the interests of the child.  A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney.  The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests.  The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight.  The guardian may be involved in the case over the course of weeks or months (and less commonly, years). 

Parenting time expeditors are described in a separate post.  Custody mediators meet with the parents to attempt to facilitate an agreement.  The mediator typically will not meet with the child directly, and has no authority to make a decision, and no opportunity to speak directly to the court. 

A parenting consultant has broader authority that is usually defined in the agreement that provides for the consultant's appointment.  The consultant will meet with the parties and will determine to what degree it is necessary and appropriate for the consultant to meet with the child.  The consultant typically will attempt to mediate the dispute, as a mediator would.  But if there is an impasse, unlike a mediator, a consultant often has the authority to make a decision.  Depending on the terms of the consultant's appointment, the consultant's decision may be binding on the parties and subject to review by the family court. 

Different child custody cases can benefit from different child custody neutrals, depending upon the facts and circumstances of the custody dispute.  The purpose of the neutral is to bring the dispute to a conclusion relatively quickly and inexpensively, and to avoid the high conflict of family court litigation. 

The Status Quo

In many instances when facing a dispute during a divorce or custody case, it is important to be mindful of the existing circumstances: where the child is living; who is in possession of the house; whether both spouses are working outside the home.   It is important because, all other things being equal, the court is very likely to maintain the status quo, if possible, when deciding an issue. 

This is especially important in the case of temporary orders (i.e., court orders that are in effect while the case is pending).  If the court must decide the temporary parenting schedule, the court will likely need a specific reason to CHANGE what the current pattern is.  Unless there is good reason, the court is likely to stick to the "status quo."  If one party has refrained from working outside the home for several years, the court is unlikely to expect that party to immediately produce substantial income.  Instead, the court will (at least temporarily) maintain the status quo, and refrain from expecting separate earnings from that party.

The status quo issue is an important consideration when someone is deciding whether or not to move out of the marital residence.  If someone moves out of the house, they can be creating a new "status quo" that they may need to be prepared to stick with.  Someone who moves out, leaving children at the marital home with the other parent, allows for a new "status quo" that the children are living with one parent in the home.  The party who moved out may have a difficult time later obtaining sole custody, or even joint custody, based upon the status quo established with the move-out. 

The same can be said of later obtaining possession of the house.  If one party moves out, then the family court is unlikely to impose upon the other party the disruption of moving out over his or her objection. 

Removing a Judge

In a Minnesota family law case, each party has one opportunity to remove the assigned judge without having to provide a reason.  The case is then assigned to a different judge.  The removal must be made within ten days, and must be made before the judge takes any substantive action on the case. 

If someone wants to remove the judge after reassignment, after the ten day deadline, or after the judge has taken substantive action on the case, it requires the judge's assent (either by the judge's own action, or by the requesting party's motion).  Many parties wish for, or even seek, removal in these instances; but relatively, very few are granted. 

What is a Temporary Order?

When the court issues a divorce decree, the order provides for final relief as to child custody, financial support and property issues.  However, in many cases, it is necessary for the court to make provisions in the interim, while the divorce is pending.    For example, if a divorce begins in March and the final decree is entered in September, the court may need make an order for interim relief to be followed by the parties between March and September.  This is called a temporary order, or order for temporary relief.

If there is a child custody dispute, and a custody evaluation is undertaken, the parents must have a temporary arrangement to abide by in the mean time.   If the marital residence is going to be sold to provide both spouses money needed to buy a new home, the court may need to decide which spouse may reside in the house while it is listed and marketed.  In many cases, the spouses reach agreement on the interim terms, in which case the court issues a stipulated order for temporary relief. 

The temporary order expires when the final decree is issued by the court.  Some of the terms from the temporary order may carry over into the final decree, and others may not. 

How Long Before the Court Order is Issued?

When a family court judge or referee presides over a Minnesota family court hearing, he or she may let the parties and attorneys know the court's decision at the close of the hearing.  More often, however, the court will make known its decision later, after taking the matter under advisement.  When the court takes a matter under advisement, it may be necessary for the court and the court's staff to research a legal issue, dig a little deeper into the file for information on the facts and circumstances, or just plain give the matter some more thought. 

The family courts operate under a general guideline that the court order will be issued within ninety (90) days of the hearing.  That time frame is extended when there are additional submissions after the hearing, such as a legal memorandum, or specific documents that the court has requested.  In those instances, the court must issue the order within 90 days of the final submission.

That said, it is more common for the court to issue an order within one to two weeks for motions involving one or two issues, and several weeks for motions involving several issues and/or complex legal matters. 

Temporary, Emergency Custody Jurisdiction

Typically, parents and children need to be residents of Minnesota for 180 days or six months for the Minnesota courts to have jurisdiction over their family law situation.  However, there are times when it is necessary, and possible, to invoke the jurisdiction of the Minnesota family court without the requisite six-month residence period. 

In child custody cases, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides for temporary, emergency jurisdiction if the child(ren) is (are) presently in the State of Minnesota and are subject to abandonment, mistreatment or abuse (or the threat thereof).   (Minn. Stat. Section 518D.204)

In those cases in which the child(ren) remain in Minnesota as residents for more than six months, the Minnesota family court's temporary jurisdiction may become permanent jurisdiction.  This is most likely to occur if there is no previous court order from another jurisdiction, or if the state where previous court orders were issued is no longer the place of residence of either parent (nor any party to the court action).