Podcast: Prenuptial Agreements and Postnuptial Agreements: Purpose, Content and Enforceability in Minnesota

Posted on January 31, 2011 by Jason Brown

In this edition of The Family Law Show, Jason Brown summarizes the law, purpose and contents of nuptials - whether pre, ante, or post.

The law in Minnesota is clear: nuptials must be both procedurally and substantively fair in order to be enforceable. But what does that mean?

Topics addressed in this podcast include: typical clients who seek nuptials, the difference between a prenuptial agreement (or antenuptial agreement) and a postnuptial agreement, the specific criteria the court will use in scrutinizing nuptials and a general framework for an effective prenuptial, or postnuptial, agreement.

Run Time: 15:16

 

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What Do I Have to Prove in Order to Modify Physical Custody of My Child?

Posted on January 29, 2011 by Jason Brown

Modification of the physical custody of a child is one of the more difficult things to do in family court. Although we've successfully moved for modification many times, careful consideration is given as to whether the request should be brought in the first place. 

When the court deals with physical custody the first time around, the "best interest of the child" standard applies. The judge takes into account 13 factors, such as who has served as the primary caretaker for a child, the stability of the home environment of each parent, and the wishes of the children, if of suitable age and maturity.

But what if several years after the entry of the initial custody order a parent seeks to modify it? It's a four-step analysis, in a two-part process. In other words, it's more complicated. Here's how it works:

In the absence of an agreement among the parties (or integration of the child into the non-custodial parent's home with the consent of the custodial parent), the court must find:

  1. There has been a substantial change in circumstance since the issuance of the initial custody order;
  2. The modification would serve the best interest of the child;
  3. The present environment endangers the physical or emotional health, or natural development of, the child; and
  4. The benefits associated with the modification outweigh the potential harm to the child.

In practice, the primary focus involves the endangerment element.

Proving "endangerment" is not easy. In the eyes of the court, endangerment takes on the most traditional of definitions. Has the child been physically abused by the other parent? Exposed to drugs, pornography or provided alcohol by the other parent? Has the child's health been neglected? Have the child's nutritional needs been ignored? Has the child's emotional health changed substantially for the worse? Is the child failing in school? 

"Endangerment" does not include a child wanting to relocate with the non-custodial parent, exposing a child to a new significant other, a child's dissatisfaction with the social structure of the custodial parent's home, or ongoing arguments between a child and the custodial parent. Actual harm to the child must be proven - and that can be tough, especially if the situation does not involve physical abuse (in those cases, we usually seek the opinion of a counselor or psychologist).

Procedurally, the parent wishing to modify custody must schedule a hearing with the court and serve motion papers on the other parent. At that hearing, the court must accept as true the allegations raised by the non-custodial parent. The question for the judge: if accepted as true, do the allegations establish a primae facie (at first glance) case of endangerment?

If the answer is "yes," the court will usually appoint a Guardian Ad Litem to investigate and set the matter for a follow-up evidentiary hearing (trial). If the answer is "no," the matter is dismissed.

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Guardian Ad Litem Provides Candid Advice to Litigants in High Conflict Custody Disputes and Protective Services Cases

Posted on January 22, 2011 by Jason Brown

The Minnesota Guardian Ad Litem Program provides advocates who represent the best interests of abused and neglected children in court. They play a pivotal investigative role in protective services cases, and other situations involving allegations of endangerment of a child.

The Minnesota courts web site provides a number of resources for litigants who may encounter a Guardian Ad Litem as part of their case:

Helpful post this week from Ben Stevens' South Carolina Family Law Blog. A trusted colleague of Stevens, Joanne Hughes Burkett,  family court Guardian Ad Litem, authored a guest article for parents entitled "What This Guardian Ad Litem Wants Parents and Parties to Know."

Here's what Burkett says:

  • A Guardian ad Litem (GAL) is not your child’s guardian. A guardian is a person who legally has the care and management of a child. Typically, this is a parent. The role of the Guardian ad Litem is to assist the Family Court Judge in ascertaining the best interests of your child.
  • The Guardian ad Litem will NOT make the final decision about custody and visitation. Only the Family Court Judge can make that decision. The Guardian ad Litem’s report is only one of the things the Judge will consider in deciding what is best for your child.
  • The Guardian ad Litem’s role as legal advocate for your child ends at the Final Hearing, unless that Order is appealed. We are not their GAL forever.
  • You control how expensive the case is, and, by and large, the Guardian ad Litem’s fee, which you will have to pay. Be careful not to run up the bill.
  • If you think there is something the Guardian ad Litem needs to know, tell your lawyer first. It could affect the strategy of your case. If the GAL needs to know, your lawyer can write, fax, call, or email the information.
  • What you tell me is NOT confidential. Because I am not your lawyer, I do not have a duty to keep in confidence anything you tell me.
  • I cannot give you legal advice, so if you have questions or concerns, talk to your attorney.
  • All Guardians ad Litem do their work differently. Ask your lawyer how to best work with the GAL in your case.
  • The less a child knows about the litigation, the more impressed I am with the parties.

Thanks to Ms. Burkett for her thoughts.

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HF69: Another Crack at a Joint Physical Custody Presumption in Minnesota: Difference This Time? Elephants

Posted on January 17, 2011 by Jason Brown

HF69 has been introduced by Rep Steve Drazkowski. It creates a strong presumption of equal parenting time and joint physical custody. The Listserv for the Family Law Section of the Minnesota State Bar Association was on fire today, with input from attorneys from around the state. 

This issue has come up for several years now...but not when Republicans controlled the Minnesota House and Senate. Will that make a difference?

You can read the entire bill here. In the meantime, here are some of the proposed provisions that modify (underlined) existing law:

  • Joint physical custody means the parents shall share time with the children as equally as possible;
  • ...the legislature declares that public policy is advanced and the well-being of Minnesota's children is promoted through the recognition of both parents' fundamental freedoms to actively participate in the care, custody, and companionship of their children...
  • In cases of marital dissolution or unmarried parentage, when paternity has been established, both parents enjoy a rebuttable presumption of joint legal and physical custody of their children.

Here are some comments posted by a good cross section of family practitioners today:

  • "This is a thoroughly bad bill, it is largely a political viewpoint about how the world should be, much of which is at variance with reality."
  • "I think this bill has some problems even big problems, but overall the concept is sound."
  • "Practicing in greater Minnesota, I can tell you I’d rather have our legislature spend money helping us to better implement the best interest standard, rather than on changing the current structure we have."'
  • "The bill creates almost a mandate for joint physical custody. I think it is irresponsible."
  • "How is it constitutional, or in the best interests of the children, to explicitly NOT start the parents on equal grounds?"

I invite your comments as well. We'll keep you posted on the progress of Drazkowski's efforts. 

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Jackpot by Josh! Idaho Lottery Winner's Estranged Husband to Recoup 40 Million Bucks

Posted on January 15, 2011 by Jason Brown

Holly Laiti has yet to speak publicly, but sources indicate that the 29 year old Idaho resident is the second winner in the second-largest mega-millions jackpot in its history. One interesting twist? Her estranged husband has been arrested nearly a dozen times, and convicted of offenses such as domestic assault, drug possession and providing alcohol to a minor. That's not where the story ends.

"Estranged" is not a legally operative term. "Divorced" is. The couple, apparently, have not dissolved their marriage, despite living apart for an extended period of time. The result? Josh Laiti, Holly's husband, is the country's newest millionaire - to the tune of 40 million big ones - despite the fact that his marriage to Holly been, essentially, over for years.

This seems like an appropriate time to address the distinction between marital and non-marital interests.

Marital Property. "Marital property" involves assets acquired during the marriage, not otherwise defined as "non-marital property (discussed below). Marital property is subject to a "fair and equitable" division among the parties - almost always "equal."

Non-Marital Property. "Non-marital property" involves assets:

  • Acquired before the marriage;
  • Acquired as a gift, or inheritance, made by a third party to one spouse, but not the other;
  • Acquired in exchange for other non-marital property; or
  • Acquired after the valuation date in the dissolution action. 

In Minnesota, the valuation date, by statute, is the date of the "first scheduled pre-trial conference" (often many months following commencement of the divorce). However, in many counties, the date of the initial case management conference (almost immediately following the filing of the action) serves as the valuation date.

Appears Idaho's law is similar to Minnesota. As a result, in the absence of filing for divorce, there is no "valuation date" to speak of among the Laitis. No other statutory definitions of non-marital property apply. Jackpot marital. Money divided between husband and wife.

Lucky Laiti. Unlucky lady.

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Brown Family Law Dives Into Social Media Head First

Posted on January 10, 2011 by Jason Brown

Exposing readers to our family practice has been pretty exciting around here lately. Over the last several months we've taken the plunge, head-first, into social media. "Studio B" has been constructed (literally).

With two web sites, a blog, Twitter, Facebook, Youtube, LinkedIn and podcasts, I finally feel like we have the outlets necessary to serve a distinct group of information-seekers. 

If you want to read about our firm, you can visit our web site. If you want in-depth articles...well...you've found our blog. If you want to to take audio with you for the bus ride into work, download our podcast programs. If you're another family law professional, let's talk shop.

Our goal is simply to provide current clients, potential clients, media sources and other family law professionals with timely, useful information on divorce and family law issues, and to interact in a meaningful way:

As always, the simplest way to get to know us is through an e-mail or phone call. If you have a question, call (763) 323-6555 or write to me.

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What are the Common Parenting Time Schedules? How is Child Support Affected by Them?

Posted on January 10, 2011 by Jason Brown

In recent years, Minnesota's child support statutes have shifted from a "label-based" model to a "parenting schedule" based model. It used to be that child support was calculated based upon the type of custody (whether joint physical or sole physical) arrangement the parties were awarded by the court.

New emphasis has been placed on the actual amount of parenting time that has been awarded, as opposed to mere labels. For that reason, the label, itself, has basically become meaningless. Some, including me, predict the end of the label in the next five to seven years.

The support guidelines now discount child support for an obligor (the one who pays) if they spend a certain amount of parenting time with their child, or children. Three broad categories exist: uninvolved (less than 10% of the available time with children), involved (between 10% and 45% of the available time with children), and equal (above 45% of the available time with children. The measuring tool is usually overnights.

Parents with less than 10% parenting time receive no credit against their basic child support payment. Parents who are "involved" receive a 12% credit. Parents who are "equal" receive a 50% credit.

We are frequently asked about what sort of parenting schedule might be awarded to a current, or potential, client. With that, we thought it would be helpful to outline the "typical" parenting time schedules that exist, along with the correlating discount percentage against basic child support.

Limited/High Risk Schedules: No child support credit available, as parenting time is less than 10% of available time.

  • Supervised Visits: Visits limited to a supervised safety center a few hours per week. Typically reserved for cases of endangerment. No basic child support credit.
  • As Agreed Upon: Visits are limited, but unsupervised. Scheduled ad hoc. No basic child support credit.

Typical Non-Custodial Schedules: A 12% child support credit is afforded, as time exceeds 10% of available time, but is less than 45% of available time.

  • Every-Other Weekend (F-Su): Bare minimum schedule for involved non-custodial parents. Usually involves parents who live some distance apart, but close enough to facilitate rotating weekends. 12% basic child support credit. 
  • Every-Other Weekend (F-Su) & One Evening Per Week: The old "standby," with children returning each weeknight to the primarily custodian's residence. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & One Overnights Per Week: Many judges afford overnight visits during the school week. 12% basic child support credit. 
  • Every-Other Weekend (F-Su) & Two Evenings Per Week: Slight increase from the "old standby," but still no overnights during the school week. 12% basic child support credit
  • Every-Other Weekend (F-Su) & Two Overnights Per Week: 6 of 14 overnights. Probably lands in the "joint physical" label about 50% of the time. 12% basic child support credit, with possibility of increase by judge, but not to 50%.
  • Every-Other Weekend (F-M) : Minimal involved schedule includes time until Monday morning school drop off. 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Evening Per Week: One additional overnight e/o Sunday, but still a 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Overnight Per Week: 5/14 overnights. 12% basic child support credit.
  • Every-Other Weekend (F-M) & Two Evenings Per Week: Argument could be made that this borders on 45% of the time, without actual overnights. 12% basic support credit.

Typical Joint Physical Schedules (Equal Time): A 50% basic child support credit is afforded against basic support, as time exceeds 45% of available time.

  • Week On/Week Off: Easiest equal access schedule to follow, but some don't appreciate a full week without seeing children. 50% credit.
  • Six & One (Overnight): Basically week on/week off, with a day in the middle to see the children. 50% credit. 
  • Six & One (Evening) : Same as above, except no overnight during the other parent's week. 50% credit. 
  • Two-Two-Three-Three: Schedule rotates M/T then W/TH, the F, S, S, then starts over, but parent who didn't have on weekend has M/T. 50% credit. 
  • Two-Two-Five-Five: Concrete every M/T with one parent, every W/TH with the other, then rotate F/S/S. Each parent has two days, followed by five days, with the children. 50% credit.
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