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

Minnesota law categorizes property as marital or non-marital.

Marital property is usually divided equally while non-marital property is allocated entirely to the party who maintains the non-marital interest. Non-marital property involves the interest a party has in property accumulated prior to a marriage or property received as a gift or inheritence by one spouse, individually, during a marriage. Marital property involves any property that the parties accumulate during their marriage, including home equity, retirement assets, business interests, bank accounts, investments, motor vehicles and other property of value.

In order to ascertain the value of property, experts are typically retained. These include real estate appraisers, actuaries, business valuators and other individuals with specialized knowledge in determining the market value of various assets.  These experts can be retained by one or both of the parties.

Once all property interests are valued, a balance sheet is put together to reflect the allocation each party will receive.  Naturally, one party will receive more property than the other as items are divided.  When this occurs, a cash payment (equalization) is typically made from the spouse receiving more property to the spouse receiving less property in order to equalize the cumulative value of the assets they receive as a result of the dissolution of marriage.

Debts are typically treated the same way as assets.  Quite often, the court will allocate all debts incurred during the marriage equally.  Debts that remain from a time preceding the marriage are typically allocated to the party incurring the debt.  The same is true for debts incurred post-separation. The value of a particular debt is usually verified through a recent statement. Typically, if the party is allocated an asset they will take any debt that accompanies it.  A prime example involves an automobile.  If one spouse takes a car, they will likely have to accept responsibility for the debt associated with it.

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Spousal maintenance, formerly known as alimony, is one of the more difficult issues to tackle during the dissolution process.  With the exception of child custody, no other issue is as personal or emotionally charged to divorce litigants.

It is quite difficult to predict exactly how much spousal maintenance the court will award a particular party.  The court will examine a host of factors, and each play a part in the decision-making process.  For that reason, alimony is decided on a case-by-case basis. 

The court will examine the standard of living established during the marriage.  Based upon that standard, it will take into account the anticipated ongoing monthly expenses of each spouse. The question for the court involves whether these alleged expenses are reasonable under the circumstances.  The court will compare the expenses against the income of each litigant.  If a litigant faces a monthly shortfall, the party will have a need for spousal support. If a litigant faces a monthly windfall, they will have the ability to pay spousal maintenance.  These elements are measured against the length of the parties' marriage, the age of the parties, the educational background of the parties and the mental and physical health of the parties.

Once all of the elements are considered, the court will determine whether an award is appropriate, how much the monthly award should be and the length of time paying party will be obligated to support their former spouse. The longer the marriage, the more likely a permanent award of spousal maintenance will be granted.  With shorter marriages, the court may consider an award of temporary spousal maintenance so that other party has an opportunity to reeducate themselves, reestablish their career path and become self-supporting.

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In January of 2007 the Minnesota child support guidelines underwent significant changes. Prior to the enactment of the present legislation found in Minnesota Statutes Section 518A, child support was based soley on the income of the obligor (the paying parent). Today, child support is based upon the relative income of both the obligor and obligee (the receiving parent), taking into account the nature of the physical custody of the minor children of the parties. The intent of the legislature was to enact guidelines that strike a balance in the income of each parent, the time each parent spends with the children and expenses non-custodial parents incur during their parenting time.

Child support involves three types of financial contribution: (1) basic support; (2) medical expenses; and (3) child care costs. Basic support is a monthly cash payment made from one parent to another for the support of the children. Medical support involves the payment of insurance premiums and uninsured expenses. Child care costs involve all work or education-related child care expenses incurred by the parents of a child.

The PICS (percentage of income for child support) of each parent is critical to determining how much support will change hands. The guidelines call for the Court to combine the gross (pre-tax) income of each parent and assign a relative percentage of the combined income to each. Once determined, this percentage (or PICS) is multiplied against the total support figure listed in the guidelines to determine how much basic support must change hands. A non-custodial parent receives a credit against the amount of support to be paid based upon the amount of parenting time they exercise. That same PICS is applied to the actual cost of health premiums, uninsured expenses and daycare to appropriately allocate the obligations of each parent.

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There are two types of custody in Minnesota: physical and legal. A parent may receive sole or joint custody. A non-custodial parent will likely receive an award of parenting time. The "best interests of the child" governs these issues.

In examining the best interests of a child, the Court will examine 13 criteria, including:

• The wishes of the child's parent or parents as to custody;
• The reasonable preference of the child as to custody, if the court deems the child to be of sufficient age to express preference;
• The child's primary caretaker;
• The intimacy of the relationship between each parent and the child;
• The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
• The child's adjustment to home, school, and community;
• The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• The permanence, as a family unit, of the existing or proposed custodial home;
• The mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custody arrangement is not in the best interest of the child;
• The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
• The child's cultural background;
• The effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
• The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Legal custody grants a parent the right to have a role in the educational, medical and religious decisions made on behalf of a child. There is a presumption in Minnesota that parents should be granted joint legal custody. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child (if, for example, a parent experiences significant mental illness or has played no role in the life of a child).

Physical custody refers to the day to day physical location of children. The presumption in Minnesota is that one parent should have sole physical custody and the other should be awarded an appropriate amount of parenting time with the children. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child - usually by showing that the parents have each played a significant role in a child's upbringing, get along relatively well, communicate respectfully with one another, have no history of domestic abuse and intend to remain living in close proximity (within the same school district) of one another. Some judges are much more open to an award of joint physical custody than others.

If one parent is awarded sole physical custody of a child, the other will typically receive an award of parenting time. Very often, such an award involves spending time with the children every-other weekend, one or two evenings per week, half of all holidays and non-school days during the academic year, and a number of weeks of uninterrupted vacation time during the summer months.

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In a published decision entitled Alam v. Chowdhury, the Minnesota Court of Appeals has found that marital property involves acquisitions or increases in value during the marriage itself (not beyond) - even if one party commits fraud upon the court. Judge Hudson wrote for the majority.

The parties were married in 1979. Husband filed a Petition for divorce in 2001, serving Wife and showing her a proposed Marital Termination Agreement. She failed to provide an Answer and Husband moved for default judgment. The district court granted default judgment and signed a Judgment and Decree that was consistent with Husband's proposed Marital Termination Agreement.

In January of 2006, Wife moved to re-open, based upon allegations that Husband misrepresented the value of assets, claimed pre-marital assets that he could not trace and referenced an inheritance that Wife "was to" receive in the relevant Agreement. The district court found that husband committed a fraud upon the court and valued his retirement plan as of January of 2006 - five years after the dissolution of the marriage. Husband appealed.

While the court of appeals found that the court did properly re-open, it also found that the district court improperly applied Minnesota's valuation statute, which reads:

[t]he court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.

Judge Hudson wrote:

Here, it is undisputed that the parties’ marriage was dissolved in 2001. Thus, during their post-dissolution cohabitation, they were not living in a marital or purportedly marital relationship; accordingly, property acquired during that cohabitation was not marital. Because the district court’s application of the presumption of marital property ignores the part of the statute requiring a marital or purportedly marital relationship, the district court’s application of the presumption runs afoul of the requirement that “[e]very law shall be construed, if possible, to give effect to all its provisions.”

The court of appeals reversed, and ordered the district court to value and divide the account appropriately.

In his dissent, Judge Worke opined that "[b]ecause disregard of legal process and lack of due diligence in objecting to the dissolution weigh heavily against reopening the judgment and decree after so much time has passed, I part from the majority, and determine that the district court abused its discretion by vacating the judgment and decree."

Troubling to many clients is the fact that the court will often value assets as of the date of the first pre-trial conference. This hearing is the final hearing to take place before trial and often occurs more than a year following the service of the Summons and Petition. It seems to me that the standard would be just if the date of service of the initial pleadings served as the valuation date. That way, litigants wouldn't be deterred from purchasing property, placing money into retirement accounts or saving money for the difficult future they face.

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In an unpublished decision entitled Karasek v. Karasek, the Minnesota Court of Appeals has affirmed the issuance of an Order for Protection based upon a district court's finding that the alleged victim was fearful of imminent physical harm. Judge Johnson wrote the opinion without dissent.

The parties were divorced in June  of 2006 and have a young child together. When mom went to dad's residence to pick up the child, she told dad that she was pregnant with another man's child. According to mom, dad became enraged, criticized her for being lazy and unemployed, and screamed at her about his being required by their dissolution decree to contribute to her medical expenses. 

Mom testified that, during the argument, “[Dad] came at me, puffed his chest out and asked me if I wanted to go, as if I wanted to fight him.” She also testified that he bumped her and pushed her backward.

In his testimony, dad could not recall whether he had puffed out his chest or whether he had asked her “to go.” Dad and his two brothers, who were present during the argument, testified that dad never touched mom.

Three witnesses, however, testified that one of dad's brothers tried to intervene and that dad shoved him or swung at him. Mom did not sustain any physical injuries during the argument. But she testified that she feared for her physical safety during the incident. As a result, the District Court entered an Order for Protection. Dad appealed.

An individual seeking an OFP under the Minnesota Domestic Abuse Act must allege and prove "domestic abuse," defined as an actual assault or infliction of fear of assault. The statutory standard requires that a party show “present harm or an intention on the part of the [alleged abuser] to do present harm.”

Judge Johnson wrote:

The district court’s finding that domestic abuse occurred is supported by evidence that Jason Karasek threatened Autumn Karasek during the January 20, 2008, incident. It is undisputed that Jason Karasek yelled at Autumn Karasek while standing very close to her, that Jason Karasek’s brother physically intervened to separate Jason Karasek and Autumn Karasek, and that Jason Karasek shoved his brother. Jason Karasek does not deny walking toward Autumn Karasek with his chest puffed out and asking her if she “wanted to go.” Autumn Karasek testified that she interpreted his statement to be an invitation to engage in a physical fight. The district court credited her testimony that Jason Karasek had “challenged her to a physical fight.”

Domestic abuse situations like those in Karasek are more difficult than they may seem at first glance because it is difficult to prove a feeling (such as fear). The subjectivity of feelings are tested by the court, whose job it is to determine whether that particular feeling (such as fear) is objectively reasonable. In situations like those discussed in Karasek, it may be simpler than a situation where an alleged victim waits weeks to file for a protective order and spends ample time with the alleged abuser in the interim. How fearful could they really be, after all, if they voluntarily spend time with the perpetrator between the alleged acts of abuse and the time of the court hearing?

If you seek to obtain an Order for Protection or must defend a claim of domestic abuse, we can help. The domestic abuse attorneys with the Brown Law Offices, P.A. are prepared to answer your questions and advocate on your behalf. You may contact us by calling (763) 323-6555. If you prefer, feel free to fill out our online contact form.

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In an unpublished decision entitled In re the Matter and Welfare of the Child of  BTN and AVD, the Minnesota Court of Appeals reversed a district court order terminating the parental rights of the child's parents. Judge Bjorkman wrote without dissent.

BTN and AVD are the parents of DD, who was born on February 6, 2007. One week later, Stearns County Human Services filed a petition alleging that DD was a child in need of protection or services because the parent's first child, AD, experienced egregious harm while in their care, resulting in his death. After an emergency protective-care hearing, DD was placed in foster care. The county subsequently determined that AD had experienced egregious harm while in the care of BTN. and AVD. On that basis, the county petitioned to terminate the parental rights of DD's mother and father.

AD was nine months old when he was taken to the emergency room. BTN and AVD told the responders that AD had been standing in front of the couch and had suddenly arched his back and fallen backward onto the carpeted floor.  AD was nonresponsive, and the emergency room doctor who examined him concluded that he had suffered severe head trauma.  The doctor ordered a CT scan of AD’s head, which revealed a subdural hematoma.  AD died during brain surgery.  An autopsy was performed, and the medical examiner concluded that AD’s death was a homicide, caused by blunt trauma to the head, which resulted in a skull fracture and a subdural hematoma.

In orders dated November 29, 2007, the district court terminated the parental rights of BTN and AVD based on its determination that a child (not DD, but AD) had experienced egregious harm in their care and that it was in DD’s best interests for both parents’ parental rights to be terminated.

Parent rights may be terminated only for grave and weighty reasons. The court must exercise great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result. A district court may terminate parental rights based on a determination:

that a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care. 

Egregious harm means the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care. To terminate the rights of a parent who has not personally inflicted egregious harm on a child, a court must find that the parent either knew or should have known that the child had experienced egregious harm.

On appeal, the parents contended that contend that the district court’s findings were insufficient to meet the "knowledge" standard - and the court of appeals agreed:

The district court found that AD’s fatal injuries were non-accidental and constitute egregious harm. The district court further found that because BTN and AVD were AD’s only caretakers, at least one of them must have caused the egregious harm and that a non-perpetrating parent would have reasonably known of the harm because of AD’s 'noticeable symptoms.' But the finding that a non-perpetrating parent would have observed symptoms is, at most, a finding that the parent knew or should have known that AD was injured. It is not a finding that a non-perpetrating parent would have been reasonably aware that AD had sustained egregious harm. The district court did not determine which parent caused the harm, identify the 'noticeable symptoms,' or find that the symptoms would have reasonably led a non-perpetrating parent to know that AD’s injury was the result of 'some conduct' satisfying the ‘egregious harm’ definition.

Judge Bjorkman concluded:

Because Minn. Stat. § 260C.301, subd. 1(b)(6), requires a finding that the non-perpetrating parent not only knew of an injury but also knew or should have known that the injury was sustained 'as a result of some conduct satisfying the ‘egregious harm’ definition,' the district court’s findings with respect to a non-perpetrating parent’s knowledge are insufficient.

The court was essentially saying that a non-perpetrating parent cannot be held responsible for egregious harm to a child unless the parent, because of actual or reasonable knowledge, had the opportunity to respond to or protect against the harm. While the district court found that each party gained knowledge of the actions of the other after the suit was initiated by the county, knowledge acquired after the fact does not meet the relevant standard to terminate parental rights.

As noted above, parent rights may be terminated only for grave and weighty reasons under Minnesota law. This case is a prime example of just how far some judges are willing to go to allow a parent to continue to care for their child. Like you, I am shaking my head in disgust. These two parents have seemingly gotten away with the murder of a child based on the "I know nothing" defense, pointing at each other. Bad enough that they are allowed to even conceive another victim...I mean, child. Now, they get to keep it?

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In an opinion filed March 3, 2009, the Minnesota Court of Appeals affirmed a Dakota County District Court's reduction, not elimination, of husband's spousal maintenance obligation following retirement. Judge Halbrooks wrote, without dissent, in Wisness v. Wisness.

The Wisness' 30-year marriage was dissolved by a stipulated judgment and decree on September 17, 1993. The stipulated judgment and decree resolved the vast majority of the issues in their case, including alimony. As a result of the parties' agreement, husband was ordered to pay respondent $1,450 per month in permanent spousal maintenance.

Three years later, at age 56, husband had an opportunity to take early retirement from his employer. He moved the district court to terminate or reduce his spousal maintenance obligation. The retirement package that he was offered provided for a 50% reduction in income until he turned 62. The district court denied husband's motion, stating that while appellant could take advantage of the retirement opportunity, he could not avoid his obligation to pay support by voluntarily reducing his income. Despite that decision, husband opted for early retirement.

In 2007, then 67, husband moved the district court to eliminate his spousal maintenance obligation. He had remarried and was then working part-time as a school-bus driver, earning annual wages of $3,271 and $1,481 per month in social-security and Medicare payments. Despite a finding that husband retired in good faith, the district court declined to fully eliminate his alimony obligation:

It is fair and equitable to reduce [appellant’s] spousal maintenance obligation by approximately 50%, in light of both parties[’] present ability to meet their ongoing living expenses. Both parties will have to curtail their expenses or dip into their marital property to make up for the shortfall they each will sustain as a result of this modification of spousal maintenance.

Husband appealed. The Minnesota Court of Appeals affirmed, opining  that findings of fact concerning spousal maintenance must be upheld unless they are "clearly erroneous." The court found that the district court considered the statutory factors of wife's financial resources relative to her ongoing expenses. Relying heavily on the "standard of living" element of Minnesota's maintenance statute, Judge Halbrooks determined that wife's projected rent, medication expenses and health insurance expenses were reasonable.

Husband argued that he should not have to pay spousal maintenance because his ongoing monthly expenses were $183 less than his monthly gross (pre-tax) income. However, the court affirmed that, despite the shortfall, a mere reduction (as opposed to elimination) was appropriate and that the district court gave weight to the fact that both parties will have to curtail expenses or dip into their marital property in order to satisfy their monthly expenses.

At the end of the day, Wisness makes it clear that a maintenance obligor who retires in good faith may still be obligated to pay spousal maintenance to their ex. The safe bet for an obligor who has agreed to pay permanent spousal maintenance? Establish a specific timetable for termination of the obligation, if possible.

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From Alaska to Georgia to California (and now Minnesota) family law bloggers across the country have endorsed a useful new online tool to answer that age-old question: Where should we meet for our parenting time exchange?

A lot of fanfare, but stick with me.

The parties have divorced. Mom lives in Minneapolis while dad has relocated to Anoka. They agree to share transportation, but neither wants to drive more than the other. The answer rests at Meetways.com.

Meetways was established in August 2008 to help people easily find a halfway point between two locations. According to their website, they wanted to find a way that friends, colleagues, and business associates could quickly and conveniently find a place to meet between their locations. Divorce lawyers have found a great use for it too.

Free of charge and way too easy to use (just type in the respective addresses and it gives you a midpoint), check out Meetways.com if you must know precisely where to "meet in the middle."

Sources for this post: Alaska Divorce Blog, Georgia Family Law Blog and the California Divorce Blawg.

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