Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN Custody Child Support

Our attorneys were recently involved in a very contentious family law situation involving a request for grandparenting time. Our firm represented the paternal grandparents of two children, ages 9 and 5. The mother and father of these two boys both contested the request of the grandparents for a court order that would compel grandparent visitation.

Our argument to the court was that the grandparents had “stepped into the shoes” of the father, who was an admitted alcoholic. Despite the fact that the grandparents had spent substantial amounts of time with their grandkids, mom and dad disputed their continued involvement in the lives of the children and wanted all time spent with the grandparents to be supervised.

Our clients were awarded one full weekend a month with the grandkids and additional time to take their grandchildren on vacation. None of the time was required to be supervised. This award was quite substantial, given the fact that most non-custodial parents are typically ordered to receive two weekends per month of parenting time, along with one weekday evening. The court clearly recognized that the stability of the children was critical in this case and that this ongoing relationship served their best interests.

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One of the more common questions I face from a potential client involves title to property - whether a car, boat, house, ATV, business, bank account or otherwise. They ask, "My spouse says that because my [insert the property interest] is not titled in my name, I am not entitled to any of it. Is that true?"

One highly unique aspect of family practice is the fact that the litigants, unlike basically all other lawsuits, often continue to speak with one another (and even live together) during litigation. Sometimes that can be productive - if the parties are discussing issues in good faith. Other times, one spouse is simply trying to play games and get inside the head of the other. My suggestion? Don't get your legal advice from your soon-to-be ex.

Here's the answer: Title to property is essentially meaningless in divorce court. Minnesota law defines marital property as anything accumulated by the parties during their marriage. Marital property is subject to equal division. The timing of the purchase, not the title, dictates the ownership interest for purposes of a divorce.

Of course, the law recognizes non-marital property, which is not subject to division. Non-marital property has a very specific definition. For the sake of this post, understand that nowhere in the definition of non-marital property is the concept of "marital title" addressed. Unless a piece of property was brought into the marriage by one spouse or received as a gift to one spouse but not the other during the marriage, the property at issue will likely be divided equally among the parties.

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Yesterday, the Minneapolis Star Tribune published part one on a series outlining the deteriorating housing market in the Twin Cities. Written by Chris Serres, Jim Buchta and Glenn Howatt, Minnesota’s New Ghost Towns offers a surprising and depressing look at the current status of suburban real estate in Minnesota. 

We have seen a drastic shift in thinking over the last five years in terms of real estate and its sale during a divorce. Not long ago the concept of a short sale or foreclosure was rarely discussed (perhaps once in 300 divorces). In today's market, however, we frequently discuss with potential clients their options when their mortgage exceeds the market value of their property.

For most parties, dividing assets is the easier part of the equation. People are often eager to receive something of value. More and more, however, we are handling disputes that involve nothing but an allocation of debt. Many seem not to have the incentive to step up to the plate and take on their equitable responsibility under the law - leaving the other to incur more debt, in the form of attorney's fees, just to make things happen.

In the past two months, I have probably spoken with two dozen couples going through a divorce about the sad reality of their housing situation. The most common scenario involves a couple who purchased a house within the last two years, when the market was at its peak, and put little down on the property. They bought as much house as they could afford on their combined incomes. Now, however, the couple will split and cut their pool of resources in half.

In the old days (all of two years ago), this did not present a problem. The parties could list the home for sale and, within about a month or two, walk away with equity to divide. Today they face the prospect of losing $40,000 or $50,000 in conjunction with the sale. Both must come up with a large sum of cash just to get out. Ironically, this is the same couple who just a couple years back had very little money to put down on the property in the first place. What are they to do?

The first option we discuss involves protecting the credit rating of each and minimizing loss on the home. It is becoming more common for parties to agree to remain business partners, in a sense. One will remain in the home and pay the mortgage for a number of years, with some assistance from the other. Then, the parties will sell the home once the market picks up. The problem with this solution is that markets are speculative. The old rule that real estate never loses value has turned to dust and many experts don't think we've seen the worst of this yet.

The second option we discuss involves a short sale. Parties can, usually without affecting their credit rating, negotiate with their lender and avoid having to come up with money at closing. Basically, the lender cuts a deal and allows the homeowners to satisfy their mortgage with sale proceeds that total less. You agree to pay 90% of the loan and the bank doesn't have to mess with selling (another) house through foreclosure.  

The third option that is discussed involves a foreclosure. If there is any light it is the fact that parties can allow the home into foreclosure and remain in the home for a period of six months until the statutory redemption period expires. The parties can pocket the money they would pay to the lender and walk away with cash. If their out-of-control ARM is $2,000 per month, they walk away with $12,000. Sounds good, but they probably won't own another home for quite a long time, given the tremendous burden this will place on their credit rating.

Finally, another option involves both parties leaving the property and renting it to a third person. Neither ever thought they would become a landlord, but the solution often allows the parties to buy some time with the hope of the market picks up.

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Depending upon your point of view, you may or may not appreciate the fact that Minnesota law contains a presumption of sole physical custody. So many potential clients ask about that. I don't believe it is a question of whether the standard will change, but when the standard will change – based upon recent legislative activity and the progressive approaches that have been taken at the Hennepin County Family Justice Center in Minneapolis.

Fellow Minnesota divorce blogger Gerald O. Williams has published a nice article about the status of a bill in the 2008 Minnesota Legislature that relates to a modification of the sole physical custody presumption to a presumption of joint physical custody in divorce cases. The legislature has opted to refer the matter for a study.

This is certainly not the first time the legislature has looked at the issue. Part of the recent child-support reforms that were discarded was a new presumption of joint physical custody. It is evident that there are many, both in the public at large, and in the legislature, that believe it is time for a shift in thinking on this issue.

Practicing on the banks of the Mississippi River, we appear frequently in both Hennepin and Anoka County. Although the judiciary in Anoka County may claim otherwise, there is certainly a reputation that sticks for failing to award joint physical custody. One of the most frequently uttered statements in my initial consultations with individuals involves fathers telling me, “I live in Anoka County and I hear I don't stand a chance of custody.” 

With much less judicial hesitation, we obtain court orders awarding parents joint physical custody in Hennepin County. Many judges in Hennepin County, rightfully, explain to the parties that custody is nothing more than a label. They begin with the fundamental question of what the parenting schedule ought to look like. Once the schedule is established, they can call it whatever they want. They let the parties call the shots without much interference.

We represent a host of individuals who come to us in an attempt to resolve their divorce in uncontested manner. Quite often, these very civil and reasonable individuals are questioned quite heavily by an Anoka County judge about whether joint custody is really appropriate. This happened to a client just last week in Anoka. Mom and dad both wanted joint physical custody and lived 1/2 a mile apart. The judge told them he "wasn't buying it" and that joint physical custody agreements are an "easy way out." The parties couldn't believe it. You know I am going to remove that judge the next time I represent a client who seeks joint physical custody. How is it that a 30 yard swim across the Mississippi can yield such a different process when, in fact, statewide law is what dictates every divorce?

In the end, I'm not arguing for one result or another. Every case stands on its own. Rather, my position is that there ought to be consistency from county to county. But, given the legislative activity on point in recent years and given the success realized by Hennepin County on these issues, the time will come when the presumption of joint physical custody is alive and well.

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We have the responsibility to tell every potential client that we “aren't sure.” Now...how's that for building credibility with someone who wants to entrust their life with you for a bit?

The truth is that we really don't know how much a divorce is going to cost in the end. An attorney who tells you they do probably isn't being up front with you. A host of issues beyond our control play a part in every case. Much depends on what county your case is filed in, what the mindset of the opposing attorney is, who the judge is in your case and what issues are contested.

Divorce cases tend to fall into one of two categories: contested and uncontested. Most contested cases become an uncontested case at some point. 

Cases that are uncontested from the start are handled by our firm for a flat fee. We charge a flat rate of $1,750 for uncontested cases without children and $2,250 for uncontested cases with children. There is a slight difference because cases with children involve more drafting and a court appearance. These quoted fees cover all aspects of your case: phone calls, meetings, negotiation, drafting, revisions and court appearances. In addition, we pay the court filing fee of $332 from the retainer paid to the firm. Usually another lawyer is not involved. 

Contested cases are much more difficult to value. Your case has a 95% probability of settling before trial. The overall costs associated with the case depend greatly on the point in time your case is resolved. With contested cases, we require an initial retainer paid to the firm which is then placed into our client trust account. We draw on that money as we perform work on the file. The retainer is refundable, meaning if money remains following the conclusion of your case it is returned to you. On the other hand, if we use up the initial retainer and your case has yet to conclude, we require you to replenish the trust account in an amount equal to anticipated work on the file in the near future.

To offer a few examples, we have had contested cases settle after just one month of negotiation and the involvement of a couple of experts. The total fees in that case were approximately $3,500.00 per side. On the other hand, we have had cases that were tried 18 months after they were filed with the District Court. Trial lasted about a week. Issues including domestic abuse, child custody and parental alienation were involved. Numerous experts were retained. The fees and costs in that complex, disputed case totaled over $35,000.

We take a commonsense approach to family cases. The $35,000 trial-destined to actions make up very small share of the cases we handle. The vast majority cost far less, as long as the parties are willing to be reasonable and flexible when it comes time to make the tough decisions. While we can't answer the ultimate question of how much your case will cost (unless it is uncontested) we hope the foregoing information provides some sort of guidance for you as you prepare to budget for your divorce.

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Minnesota does not recognize common-law marriage. Common-law marriage involves couples who treat each other as if they are married, hold themselves out as married and believe themselves to be married as a matter of law. Often, parties to a common-law marriage will refer to each other as husband and wife, share last names or file income tax returns together. Only 16 states (nearest being Iowa) recognize common-law marriages, and that number is shrinking.

In Minnesota, parties who live together are considered cohabitants rather than husband and wife. Unlike the marital dissolution statutes which provide that the parties shall fairly divide (usually equally) the property accumulated by both during the marriage, cohabitants who break off their relationship are awarded property directly in proportion to their financial contribution during the relationship. Such cases are civil actions, not family court actions.

Strange, however, during a time when more and more people are living together without marrying such a limited number of statutes that apply. Some argue the legislature has intentionally limited the law in this area to encourage people to get married, therefore maintaining some sort of perceived “ideal” society.

Given the practical reality, however, it seems more legislation must be drafted to protect those who have committed themselves in a long-term relationship yet failed to contribute financially as much as the other. They may have an expectation that differs greatly from the judgment received after the fallout of their relationship.

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Every person going through divorce will face one fundamental decision time and again: Do I compromise or do I stand firm in my position? Certainly there are times for both. As often as possible, however, we recommend taking the high road and giving a little of yourself for the greater good of your family. This may not seem like good advice coming from a divorce lawyer. After all, isn’t it our job to stand and fight to the bitter end with sharp claws and gnashing teeth (have you seen those silly attorney yellow pages ads yet...the ones with growling grizzly bears and wolves featured prominantly)? Each case requires a little different approach.

At this point in time, compromising probably doesn't seem like the best thing to do for yourself. Nor is it the best for your lawyer's pocketbook. But, a lawyer who truly has your interests in mind will attempt to position your case for settlement and speak with you about how to approach a case in a sensible manner rather than unnecessarily drive up the costs of your case through contentious litigation. We often say that any fool (referencing the attorney) can turn a $3,000 case into a $30,000 case. Aggressive lawyering typically yields greater fees and much it it simply isn't necessary. 

Unfortunately, in some cases we can do nothing but litigate. We've been there many times and enjoy trying cases. This entry is not intended for parties who have been victims of severe domestic violence or whose children are in danger while in the care of their other parent. In those situations, and others, we must take a very aggressive approach. However, the vast majority of cases do not involve such situations and can be resolved much less expensively (in terms of dollars, time and emotions) in a manner that is consistent with what the court will ultimately do with the case if asked to decide. 

Consider how your soon-to-be-ex feels about things. Think about your children. Discuss solutions that work for everyone involved in the case, not just you. Most importantly, it is irresponsible to intentionally create or fuel ongoing conflict during a divorce. In our experience, clients who are bitter, angry and relentless in their approach wind up hurting themselves and living with much more pain than those who come to the table with a sense of flexibility and reasonableness. We find they are also far less satisfied with the legal process.

We are not suggesting the divorce process will be easy for you. Everyone knows that it is very difficult to make reasoned decisions in the middle of an emotionally charged situation. It is our job to help with that. We understand you may hurt because of infidelity, irresponsible spending on the part of your spouse or chemical dependency issues. But, the bottom line is that the court does not care about such things, unless they have a direct impact on the welfare of the children. For that reason, it is important to focus on the things that do matter to the ultimate decision-maker in your case.

We find the couples who resolve their case through settlement feel much better about the result. They own the agreement. They haven't been told what they are going to do some person in a black robe. They conclude their case in a much shorter time frame than expected. They have more financial resources to draw on in the future. And, most importantly, their children seem to benefit from the fact that their parents, despite the dissolution, have found a way to work things out. The experts agree that divorce is a very stressful and difficult time for the litigants. But, those same experts also agree that it is even more stressful and painful for children. The longer your case lasts, the more harm will be done to your children.

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The Minnesota Supreme Court has published a set of recommendations concerning parenting time. These are not binding legal authority, but take into account all facets that must be examined in determining what a "good" parenting plan involves. Here is that the Court has to say about parenting time and teenagers:

Developmental Tasks

During the early stage of adolescence, children continue the process of establishing their identity and self-worth. Through this process, and with guidance from their parents, they establish a sense of self in relationship to the rules and regulations of society. Adolescents also begin the process of separating from their parents, during which they may mourn the loss of childhood, dependency, and protection within the family. During this stage, adolescents gain academic and/or athletic prowess, make and sustain friendships, continue the process of gender identification, and begin to explore intimate relationships.

During the later stages of adolescence, young adults continue the process of establishing their independence. They continue the development of loyal friendships, begin to develop a work ethic, and begin to develop aspirations. Young adults also continue the process of gender identification and management of sexual impulses. Adolescents need the support and involvement of both parents. Adolescents may be embarrassed or angry about their parents' relationship. They may begin to have doubts about their own relationships with family members and peers, causing them either to focus too much on relationships or to withdraw from relationships. Adolescents may also inappropriately act out by using drugs or by engaging in sex or other unhealthy behaviors to attain a sense of belonging.

Parenting Time Considerations

It is important for parents of adolescents to maintain the child's accessibility to school, peers, extracurricular and community activities from both homes. It is also important for each parent to consistently apply the family rules of their own household.

Adolescents may need to be with friends more than with their family and, therefore, may resist a rigid parenting time schedule. Parents will need to exercise greater flexibility, adapted to the increasing ability of the child to take care of his or her own needs. There will also need to be greater flexibility adapted to the child's preferences -- an adolescent should not be forced to comply with a parenting time schedule about which the child had no input. To accomplish this, parents should consider the child's wishes and decide parenting time issues with the child.

Many adolescents benefit from a primary home base, with specific evenings, weekends, and activities at the other home scheduled on a regular and predictable basis. Other adolescents, however, may be comfortable spending equal time with each parent, including up to two weeks at each residence. Adolescents may be comfortable with one to three weekends of parenting time per month, depending upon the child's schedule, distance, and capacity to travel. The noncustodial parent should maintain contact with the child's teachers and attend the child's performances and other important events. Parents who live far apart should establish, with input from the child, a permanent schedule with some built-in flexibility.

What Parents Can Do to Help

Parents of adolescents can help by:

• Developing a parenting time schedule by working with the child;
• Establishing a predictable schedule that is flexible enough to allow for the child's activities;
• Consistently applying family rules and expectations; and
• Avoiding the assumption that a child's mood swings or behavioral acting out is caused by the other parent.

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The Minnesota Supreme Court's publication entitlted "A Parental Guide to Making Child-Focused Parenting Time Decisions" offers the following advice when dealing with elementary school-age children:

Developmental Tasks

Elementary school age children are learning to develop relationships and cooperate with peers and adults. At this age, children establish foundations for academic and athletic skills. Self-esteem, self-worth, moral development, and personal security are issues for this age group. Elementary school age children identify with and model the activities of the parent who is the same sex as the child. Children also become aware of their parents as individuals, often fear the loss of parents, and feel sadness and anger because of their parents' divorce or separation. Self-blame, depression, and attempts to reunite parents are not uncommon in this age group. Children need parental assistance in learning organizational skills.

Parenting Time Considerations

While many elementary school age children benefit from a primary home base, children at this stage of development can also benefit from spending longer periods of time with their noncustodial parent, assuming that they have developed and maintained a close relationship with that parent. Children of this age may be comfortable being away from their custodial parent on a regular basis for parenting time lasting two to three days and for longer periods during school breaks and summer vacation. The more time a child has spent with the noncustodial parent, the more comfortable the child will be spending time away from the child’s home base. For younger children of this age group, frequent parenting time (at least once per week) with their noncustodial parent is desirable. As a child matures, longer parenting time with fewer transitions may be preferred.

What Parents Can Do to Help

Parents can help their elementary school age children by:

• Establishing and following a predictable parenting time routine;
• Gradually changing the frequency and increasing the duration of parenting time;
• Encouraging and assisting in phone and letter contact with the other parent
• Avoiding criticism about the other parent and others in the home;
• Informing teachers of any stress the child is experiencing and getting help for school-related problems;
• Encouraging and assisting the child to maintain contact with school, friends, and extracurricular and community activities.

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