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

Acts of domestic abuse that occur during a marriage can have a substantial impact on custody proceedings.  A finding of domestic abuse can prohibit parties from sharing joint physical custody of their children.

Minnesota's Domestic Abuse Act is contained within Minnesota Statutes Section 518B. It defines domestic abuse as "physical harm, bodily injury, assault, or the infliction of imminent physical harm between family or household members" or "criminal sexual conduct committed against the family or household member by an adult family or household member." The physical acts described above are relatively straightforward.  Difficulties arise, however, when threats of physical harm are not followed with an act resulting in physical harm.  The question for the Court involves whether a threat results in fear of harm and whether that fear was reasonable under the circumstances.

A litigant bringing an act of domestic abuse to the attention of the court is ultimately seeking an Order for Protection. Such an Order prohibits contact by the offending party upon the victim, and often denies the perpetrator access to the victim's residence and place of employment.

In order to secure an Order for Protection, the victim will first petition the court without notice to the perpetrator.  The court must accept as true the allegations contained within the petition.  If these allegations rise to the level of domestic abuse as defined by law, the court will enter a temporary order.  Then, the perpetrator is served with notice of the entry of the order.  At that point, the perpetrator may contest the issuance of the order by participating in an evidentiary hearing (a mini trial) on the issues.

If an Order for Protection is entered, criminal penalties are attached to a violation of the order.  As an additional consequence, if the situation involves acts of domestic abuse among a husband and wife who are dissolving their marriage, it is rather unlikely the court will consider an award of joint physical custody of the children of the parties.

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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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