Minnesota Divorce & Family Law Blog

Give Yourself the Advantage: Tips for Dealing with Custody Evaluators

Jason Brown — Mon, 09 Apr 2012 18:38:08 -0600

Child custody can be a controversial issue; it is common for both parents to want physical custody - or for one parent to seek sole custody over a joint custody arrangement.

The disagreements can go on and on, and that means the court has to intervene with the custody evaluation process. A custody evaluator is appointed, or hired, to review the situation and create a report that the court uses to determine what is in the best interest of the minor child.

It is best to cooperate with the custody evaluator in every way possible. How you interact with the evaluator is going to carry a lot of weight in the evaluation - even though the relevant statute doesn't reference your conduct during the process.

Here are some things you should keep in mind when working with a custody evaluator:

They will sometimes make you feel that they are on your side. This is so you will put your guard down. Never ever make the assumption that the evaluator is on your side.
Keep in mind that they are human, and will react adversely to certain personalities. If you’re honest and open, then that is going to work in your favor.
The custody evaluator doesn’t care about who the good guys and the bad guys are. It is what is best for the child that concerns them.
Do not argue with the custody evaluator. You need to make eye contact and listen to them. You need to establish rapport with them, so it may help that you nod your head in acknowledgment of what they are saying. If you disagree, disagree nicely. You need to get your own points across so that they are considered.
Provide the evaluator with all supporting documentation, and any other documents that may be requested. It is also important to provide these documents in a timely manner.
If there are any collateral contacts, provide the evaluator with their names. These are individuals that are aware of your competence as a parent, and can vouch for the weak points of the other party.

About 95% of the time, the judge will adopt the recommendations of the custody evaluator. We've successfully tried many cases, however, in which we were able to discredit the opinion of the evaluator and gain an award of custody in favor of our client. Still, the odds are against if the report comes back in favor of your spouse. For obvious reasons, it is critical to have the custody evaluator on your side.

It's Time for a Spousal Maintenance Formula in Minnesota

Jason Brown — Sat, 07 Apr 2012 14:42:10 -0600

I'm neither for, nor against, spousal maintenance. It is what it is. I have represented clients who have been asked to pay, and those who seek it (and need it). The reality is that there is usually not enough money to go around after a divorce. The issue isn't about whether alimony is "right," "wrong," "criminal" or "necessary."

The issue? It's so difficult to predict how much alimony, if any, will be paid, and for how long.

We have a set of alimony statutes that offer a host of of "factors" for judges to consider in rendering alimony awards, but no definitive guide to as to value or time.

Five years ago, the legislature amended the child support guidelines. They were able to take into the account the income of both parents and the number of children in rendering a grid that breaks down, to the precise dollar, how much it "costs" to raise a child each month. Based on that cost, the guidelines allocate support obligations.

The result? Black and white orders and settlements. Litigants save money. Cases resolve earlier. Court resources (currently on the chopping block during a budget crunch) are spared. Sure, there is the occasional argument about imputed income or how to measure parenting time. But, I think the family bar, in large, would agree that child support is an issue that is pretty cut and dry.

Why can't this be done with spousal maintenance?

I understand the court's primary function is to protect children, but it's not a stretch to suggest that an alimony formula that mimics the child support formula would benefit everyone - especially the wives and husbands who are trying to navigate divorce.

Some states have a formula in place for spousal support, instead of "factor-based" awards. Kelsey & Trask, a family law firm based in Massachusetts, are thought leaders in the area. Their recent publication entitled The Divorce Spousal Support Calculator: An Alimony Formula Resource is exceptionally helpful.

Over the last ten years, I've represented paying spouses and seeking spouses. It seems, generally, that for every $60,000 in income, judges have found that an individual, exclusive of cases in which a child support obligation is required, are "able to pay" $1,000 per month to their in-need spouse.

A few examples the cases I've been involved in:

$60,000 per year earned: $1,000.00/month obligation;
$90,000 per year earned: $1,500.00/month obligation;
$110,000 per year earned: $1,750.00/month obligation;
$120,000 annual income: $2,000/month obligation

That covers about 95% of litigants; the top 5% of wage earners generate income of at least $153,000, according to Tax Foundation.org.

As to "need," rather than having each party put together budgets and argue about how much they can spend on haircuts and gasoline, the legislature should create a grid that resembles the child support "needs" grid. Take the combined income of the parties and indicate how much each party "needs" to meet their ongoing expenses. No debate about lifestyle or historical spending. If the requesting spouse has sufficient income to meet that "need" grid value, no alimony. Case closed.

Assuming they establish a case of "need" on the grid, the next question involves the amount of the obligation.

As to "amount," a simple guideline that requires payment of $1,000.00 for every $5,000.00 in gross monthly income can serve as a cap. It is generally assumed that an individual can earn at least $20,000 per year (1.5 times minimum wage); the child support statutes indicate as such. Simple math determines how much the obligor must pay.

As to duration, keep it simple: alimony payments will be paid for a period of time equal to one-half of the marriage. That seems the be a general concept lawyers float during settlement discussions anyway.

Several of my colleagues have recently commented that it is time for a maintenance formula. What are your thoughts?

State Bar Association Names Brown's Minnesota Divorce & Family Law Blog to the Top 25 Minnesota Blawgs

Jason Brown — Thu, 12 Jan 2012 20:21:40 -0600

We are pleased to announce that the editorial board of the Minnesota State Bar Association's Legal News Digest and Practice Blawg has named our Minnesota Divorce and Family Law Blog one of the Top 25 Minnesota Blawgs for 2011.

What's a blawg? Well...a blog where the lo is the law.

They write:

Here’s another example of a well thought out and nicely designed site. Minnesota Divorce & Family Law Blog co-authors Jason Brown and Jill Anderson make the site easy to navigate at a quick glance. They do a tremendous job of tagging each post. They also include podcasts which give the site a personal touch. We encourage others to follow their lead...what they offer shows a wealth of experience and easily lands them on our Top 25 list.

Thanks to the Association, and congrats to our fellow award winners. Good stuff.

Our Divorce and Family Blog launched in April, 2008. Over 200,000 visitors since. We will continue to innovate as online technology and social media evolve. We hope you find this resource helpful and invite you to contact the firm if you have any questions.

The Four Phases of a Contested Divorce in Minnesota

Jason Brown — Mon, 09 Jan 2012 20:45:43 -0600

About half the cases we handle are more contested divorces. These are marital dissolution cases in which the litigants don’t expect to reach agreement early and, instead, need the intervention of the court system in order to reach a resolution.

These divorces typically involve four distinct segments.

The first segment of work in a contested case involves the case workup. This is where we put together the initial pleadings in the case and serve and file them. You will complete an initial questionnaire and provide documentation to us so that we can adequately move forward and understand exactly what relief is sought.

Following the service of the summons and petition, we will participate in what’s called an initial case management conference. This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. The court, at that point, might refer the matter for an early neutral evaluation. This is a process where the parties can meet with a court-appointed expert and try to settle the case before becoming too entrenched.

If matters don’t resolve at the early neutral stage, then we move into the next phase - called discovery. This is a process where we’re going to gather information from your spouse. We may do so formally, or informally.

In addition, we may elect to schedule a motion for temporary relief. This is a hearing in which the court will make a determination, on a temporary basis, of who is going to reside in the homestead, who is going to have temporary custody of the children, and what sort of temporary alimony, or child support awards, are appropriate. Quite often cases will settle following the entry of a temporary order, because the parties have a preview into how the judge views the facts of the case.

However, if the case has to continue, we will position your case for the settlement stage. We’re going to attempt to work out matters either through mediation, or some other form of alternative dispute resolution.

If we’re not able to work it out, the court will call us back in, and we will participate in a pre-trial conference, where we’re going to try one last time to get the case settled, with the assistance of the judge.

The fourth phase involves preparation for and actually trying the case. The judge has 90 days to issue a written decision following the end of the trial, and if either party is dissatisfied with the outcome, they have an additional 60 days in which to file an appeal.

What is an FENE...and why do they work?

Jason Brown — Thu, 10 Nov 2011 20:19:43 -0600

More and more Minnesota counties are providing divorce litigants with an opportunity to resolve their financial issues through a process known as "Financial Early Neutral Evaluation." Settlement success rates in the FENE model are astonishing - as high as 75% in some jurisdictions.

An FENE involves a half-day session (or two, or three, or four) with a court-appointed neutral. This neutral typically is an experienced family law attorney, or a CPA familiar with the financial issues involved in a divorce. The parties, and their lawyers, sit down with the evaluator very early in the case - in an effort to catch people before they become too embroiled in conflict, or stuck in their position.

The process begins with the exchange of information, to ensure that there has been a full and fair disclosure of all income, assets and liabilities. A balance sheet is often created, which defines the universe of assets and debts, attributes value, provides a basis for the value, carves out any non-marital claims, and then allocates the relevant item to one of the parties. Once all allocated assets and debts are added up for each litigant, the cumulative value for each should be equal. This is typically the least controversial portion of the FENE, but can take some time.

The more controversial portion of the FENE involves the issue of spousal maintenance. With the assistance of the evaluator, the income and budgets of the parties will be scrutinized. A range of possible outcomes may be discussed, and recommendations may be made by the evaluator concerning the amount, and duration, of alimony in the event that the judge is left to decide the issue. Settlement discussions begin with that opinion as a backdrop.

Why does FENE work so often? A few points:

The parties have direct conversation with one another, and the evaluator, in a natural way. A far cry from the robotic "question and answer" method of introducing evidence during a trial.
The rules of evidence go out the window at an FENE. Any issue is up for discussion, empowering participants to voice their real-life concerns.
Emotions may be taken into account at an FENE. Issues concerning "fairness" and "hurt" may be addressed as part of the process. Frankly, the law of "no-fault divorce" precludes alot of this in the courtroom.
The process can be therapeutic. People feel like they can speak their mind, and they are listened to. Sometimes all a party needs is to be heard by someone.
Spouses have to look each in the eye as they discuss the issues. Very different from sitting 25 feet apart in the courtroom, facing front.
There is a real sense that the parties can "get it done" during the process. Litigants believe that closure has real value, and may be worth a compromise.
The process is a respectful one. Most evaluators know how to keep tempers from flaring.
The evaluators, not the lawyers, control the agenda. Both parties feel they are on a level playing field.
Opinions matter. Litigants afford substantial weight to the perspective of the evaluators. They know the evaluator has no stake in the outcome, and the experience to back up their opinions.
The neutrals are forced to "show their work." What I mean is that the parties are literally walked through each of the elements of the case, together, and hear the same thing at the same time. They see how the opinions of the evaluator are created right before their eyes, giving them more credibility.
The surroundings are comfortable. There are no robes, no gavels, no court reporters, and no security. Just people sitting around a table, with their favorite beverage, talking.

As time goes on, I suspect the FENE process will gain statewide acceptance. Most of the counties in the Twin Cities metro area have adopted such a program. Why wouldn't they? With a 3/4 reduction in divorce litigation, everybody wins....except those lawyers whose practice model is based on "dog fight" mentality. But, who's feeling sorry for them anyway?

Divorce Court: A Few Simple Rules to Follow

Jason Brown — Wed, 05 Oct 2011 18:03:36 -0600

Thanks to Mark Pfenning, a divorce lawyer and author who has published many articles geared toward helping parties through the divorce process. His recent article, Divorce Courtroom Tips, provides some helpful strategies and a useful summary of the basic rules of decorum in family court. Here's what Mark has to say:

Settle Some Things. This means the judge won't be in control of everything.
Expect Unfavorable Decisions. There are three directions the judge can go when making a decision: Your way, your spouse's way, or the Judge's way. As you can see, two out three are not in your favor.
Let Your Divorce Attorney Do the Talking. Do not speak unless asked to do so by the Judge.
Respect is an Absolute. When addressing the Judge with respect by addressing him/her as "Your Honor."
Don't Address Your Spouse. Never speak to or make comments to your spouse when you are before the Judge.
Check Your Emotions at the Door. Do not make faces or gestures when the judge or your spouse's attorney is speaking. Judges see this and do not appreciate it.
Dress for the Occasion. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
Write. Don't leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
Come Prepared. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
Be Ready to Wait. You will sometimes wait for hours before your case is called.

Good suggestions. I would also suggest leaving all digital devices in the car. I recall a lawyer whose cell phone rang in the middle of his intense cross examination of my client in a recent trial. The more memorable impression was the expression on the judge's face.

What are Parenting Time Expeditors?

Jason Brown — Sun, 10 Jul 2011 18:34:46 -0600

Under Minnesota law, the parties, or the court, can seek the appointment of a parenting time expeditor as part of a divorce or paternity proceeding. Parenting time expeditors can save the parties time and money by keeping parenting time disputes out of the court system entirely. No attorney to pay. No motion filing fee to pay. No two-month waiting period to speak with a judge.

A parenting time expeditor works to resolve parenting time disputes by interpreting and enforcing an existing court order. Some parties never use the expeditor, even if appointed, because no conflicts arise. Others use them once. Still others...quite regularly.

Expeditors are supposed to first mediate disputes between parents. If the parents are unable to come to an agreement on their own, the expeditor issues a written decision.

Once a dispute is brought to the attention of the expeditor, they expeditor will meet with the parties in a relatively short period of time - often the same day, by telephone.

If a decision is required of the expeditor, it must be consistent with the existing order. In other words, an expeditor does not have the authority to create new schedules or conditions of visitation.

The decision can include an award of compensatory parenting time, along with an award of attorney's fees and costs. The opinion must be written and mailed to each party, and is subject to review by the district court if either party requests a hearing. Usually the expeditor's decision is subject to "appeal" to the district court for a period of 14 days. Thereafter, the right to have the matter addressed by the court is extinguished.

Either party can move the court to remove the parenting time expeditor, but must show "good cause" for doing so. Such a feat can be rather difficult, but tempting to those who are not happy with the decisions of the expeditor.

Podcast: Jason Brown's Recent Interview on WCCO Radio

Jason Brown — Tue, 24 May 2011 19:10:56 -0600

It was a privilege to spend some time with WCCO's Esme Murphy last Saturday evening. Esme and I discussed a number of family law issues unique to Minnesota, in the wake of the pending divorce between Arnold Schwarzenegger and Maria Shriver.

On a personal note, a real thrill to share the same air as Steve Cannon, Charlie Boone and Sid Hartman, among others - if only for a short time.

Topics addressed in the interview include custody, child support, spousal maintenance, property division, no-fault divorce, common misconceptions, and the subtle differences litigants will find from county to county.

Run Time: 13:54

Podcast: Establishing Physical and Legal Custody Under Minnesota's Best Interest Standard

Jason Brown — Tue, 10 May 2011 12:27:01 -0600

In this edition of The Family Law Show, we offer an overview of the standards Minnesota judges use in determining the physical and legal custody of children.

Custody is an emotionally-charged issue, with a lot of uncertainty for parents and kids.

Topics in this podcast include the difference between physical custody and legal custody, joint custody as compared to sole custody, the "best interest of the child" factors and the key facts judges look toward in making custody decisions.

Run Time: 12:52

Harrison & Hannah: Two with an Interest in Taxation

Jason Brown — Mon, 04 Apr 2011 18:33:47 -0600

Tax season is in full swing. Thanks to Jeanne Hannah, Michigan divorce lawyer, for her summary of the IRS tax resources that may be of interest to current, and former, divorce litigants.

Hannah's recent post provides links to the IRS forms and publications that address an individual's filing status, exemptions, tax interceptions and claims for innocent spouse relief:

IRS Publication 504: Divorced or Separated Individuals;
IRS Form 8379: Injured Spouse Allocation (Tax Interception);
IRS Publication 971: Innocent Spouse Relief;
IRS Form 8857: Innocent Spouse Relief;
IRS Publication 501: Exemptions and Standard Deductions;
IRS Publication 544: Sale and Disposition of Assets;
IRS Publication 555: Community Property; and
IRS Publication 590: IRAs.

Of course, my favorite tax-related link - the Beatles "Taxman," from their 1966 Revolver album. A breakthrough songwriting effort for George Harrison, with the guitar solo, ironically, played by Paul McCartney.

Good Lawyer v. Good Therapist: There's a Role for Both to Play

Jason Brown — Fri, 04 Feb 2011 01:30:18 -0600

"A good therapist is less expensive than a good lawyer." I've uttered those words to many clients.

Yes. I try to help clients gain some perspective about the dissolution process, and their feelings. I'm not heartless. I want to be there for them. But, at the end of the day, the honest truth is that my ability to provide professional advice on the emotional component of divorce is limited.

Robert Mues, divorce lawyer and editor of the Ohio Family Law Blog, recently collaborated with Donna Ferber, noted psychotherapist, and "switched roles" to discuss the importance of each other's role during the divorce process.

Attorney Mues writes:

The therapist is not trained in the law, and I am not trained in psychology. We each have distinctly different roles. A good therapist can help a client deal with all the changes in a relationship that are affected by divorce—children, parents, extended family, in-laws, and friends. The therapist can help the client figure out priorities for the future, deal with anger issues, or help clarify why a person has quit advocating for themselves. Also, therapists can help prepare a client for Court through role playing. The therapist will work with the client to design a plan individually tailored to the emotional needs of the client. Often times this is different from “marriage counseling."

Therapist Ferber offers the following tips:

Just because your friend had a good experience with an attorney doesn’t mean they are the right one for you. Trust your gut.
Pick a specialist. While they may be more expensive per hour, they have more experience and in the long run will be both cost and time effective.
Aggression doesn’t insure a “win”. An overly aggressive attorney may fan the flames of conflict rather than move toward resolution.
Pick an attorney who understands this isn’t about “winning”. She/He should understand divorce is about a major change in the family and that more than the “bottom line” will be affected. A good family attorney is willing, when necessary to work with your therapist. He/she is focused on the family’s post divorce situation and understands the interconnectedness of the family does not end with the dissolution of the marriage. In short, they can see the “big picture”.
A consultation is like a first date, what you see is probably what you get. Don’t pick someone who minimizes your concerns, is sarcastic or dismissive. Don’t ignore your own radar by dismissing his/her behavior in favor of excellent credentials.
Don’t use your attorney as a therapist. And don’t use your therapy time to talk about legal issues. Efficient utilization of your professionals will keep costs down, provide you with better information and effective support.
Don’t withhold information from your attorney because you are embarrassed. They aren’t there to judge you, but if you don’t give them the information they need, you cut down on their ability to effectively represent you. Don’t assume drinking, abuse or affairs are not relevant even if you live in a “no fault” state. Underreporting or minimizing can result in your not getting the best settlement. ALWAYS tell your attorney if there are weapons in your home.
Try to stick with the facts. The emotions get processed with your therapist.
Talk frankly about costs up front and what you will be charged for.
Finally, be clear the court is not going to reward you for pain and suffering. Settlements aren’t based on how betrayed or rejected you feel. Keeping an objective attitude regarding the legal system can play a big part in keeping your expectations realistic.

Thank you both for your perspective.

There are other professionals we often refer clients to, including financial planners, mediators, parenting consultants, realtors, mortgage brokers and auto dealers to help with getting life back on track. Each has a unique role to play during this time of transition. It really does pay to find someone who is compassionate and understands your needs following a breakdown of your marriage. Perhaps at some point we can post insight from these folks as well.

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

Jason Brown — Mon, 31 Jan 2011 19:43:55 -0600

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

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

Jason Brown — Sat, 29 Jan 2011 07:04:35 -0600

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:

There has been a substantial change in circumstance since the issuance of the initial custody order;
The modification would serve the best interest of the child;
The present environment endangers the physical or emotional health, or natural development of, the child; and
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.

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

Jason Brown — Sat, 22 Jan 2011 11:09:48 -0600

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:

Online GAL Brochure, in English, Spanish, Hmong and Somali.
GAL district manager contact information.
General program information, such as goals, values and policy.

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.

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

Jason Brown — Mon, 17 Jan 2011 15:30:27 -0600

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.

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

Jason Brown — Sat, 15 Jan 2011 11:24:19 -0600

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.

Brown Family Law Dives Into Social Media Head First

Jason Brown — Mon, 10 Jan 2011 20:09:39 -0600

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:

Twitter: Our Twitter feed is designed to provide followers with timely links to family law articles of interest, our perspective on a key family issue and just tell you what we are up to. A microblog, we post several times per day. I'd enjoy connecting with you on twitter.
Facebook: Our lawyers provide current and potential clients with links to practical advice from family practitioners from around the country and offer a discussion forum. Daily updates are provided, with opportunities for comment from visitors.
YouTube: Through YouTube, we broadcast video summaries of the legal issues family law litigants face. Choose from dozens of relatively short, easy-to-understand segments hosted by our lawyers. Many consider a visit to our channel an "interactive consultation." We think you'll find it helpful.
LinkedIn: LinkedIn serves as our firm rolodex. We've connected with family law professionals, including lawyers, accountants, mediators and psychologists, from throughout Minnesota. In addition, we post links to items of interest to the family law community, such as new cases, articles or tidbits. I'd enjoy getting to know you on LinkedIn.
Podcasts: Finally, I'm hosting a podcast entitled "The Family Law Show." We provide a relaxed presentation of various family law issues that you can take with you. Our library of programs is growing, so we encourage you to check back often.

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.

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

Jason Brown — Mon, 10 Jan 2011 16:07:27 -0600

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.

Gambling, Alcohol Abuse, Drug Use, Cheating & Dissipating: Fault in a No-Fault Divorce State

Jason Brown — Sun, 19 Dec 2010 06:45:06 -0600

The lawyers with Thyden, Gross & Callahan, LLP, authors of the Maryland Divorce Legal Crier, recently published an article entitled "Putting the Fault Back into No-Fault Divorce." They point out that despite the fact that several states on the east coast have moved (like Minnesota in the 1970's) to "no-fault" divorce, fault still creeps into the mix.

The same is true in Minnesota. While easy to simply utter "we're a no-fault state," we're not entirely no-fault. Here's a compare/contrast between they Thyden summary and Minnesota law:

Property:

East Coast. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider. In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate. In Virginia, one factor is circumstances contributing to the dissolution of marriage. In DC, it is circumstances contributing to the estrangement.

Minnesota: We see fault creep into asset and liability allocations through the dissipation of assets, concealing of assets, or "sin spending." If a party dissipates assets (sells while divorce is imminent) the non-selling spouse will likely receive their share of that asset, on the balance sheet, as part of the ultimate distribution. If a spouse conceals assets, the court may ultimately award the concealed asset, in full, to the innocent spouse. And, if one party gambles away marital assets, or incurs substantial debt in relation to alcohol abuse, cheating or gambling, the court may allocate the financial consequences of "faulty" behavior to the "sinning" spouse.

Custody:

East Coast. Marital misconduct does not necessarily make you a bad parent. The test is best interest of the children. But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

Minnesota. Minnesota's "best interest standard" takes into account behavior that impedes a spouse's ability to adequately parent a child. For example, if alcoholism led to a breakdown in the marital relationship, no impact on spousal maintenance. Custody? The court is absolutely interested in hearing about it...and how the alcohol abuse has affected the children. The same is true with domestic abuse, adultery or late night partying.

Alimony:

East Coast: In each jurisdiction, the law provides a list of factors the court must consider in determining alimony. In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties. In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Minnesota: A list of factors for the court to consider, but the circumstances surrounding the estrangement of the parties is not one of the them. Nor is the question of adultery. Many of our clients are shocked ("outraged" is a more accurate description) to learn that their spouse's cheating has no bearing on an award of spousal maintenance. Might a newly-elected conservative legislature in Minnesota be open to changing the statute? Wouldn't surprise me.

Minnesota Supreme Court Finds SGLI Benefits Unassignable on "Equitable" Basis Per Federal Preemption

Jason Brown — Sat, 11 Dec 2010 16:25:52 -0600

This week the Minnesota Supreme Court issued a decision in the Angell case. Chief Justice Gildea authored the 17 page opinion. There was no dissent.

The issue in Angell was whether federal law preempts a district court‘s award of death benefits to a non-beneficiary spouse. The Court held that Federal anti-attachment provisions preempt a district court‘s order apportioning $150,000 in federal death benefits to a non-beneficiary spouse under Minn. Stat. § 518.58, subd. 2 (2008) in a marriage dissolution.

The parties were married in 1981. One of their sons, Levi, enlisted in the Marines in 2002. He died during combat operations in Iraq in 2004. Prior to his death, Levi secured life insurance coverage through the Service members Group Life Insurance (SGLI) program. SGLI is regulated under federal law. Levi named his mother, alone, the beneficiary under the policy. She received approximately $500,000 following Levi's death.

Two years later, a dissolution action was commenced. The case required a trial, but the only issue involved the characterization of the SGLI benefit as "marital" or "non-marital."

While the district court found the SGLI benefits were non-marital in favor of Wife, Husband was awarded a share of the proceeds to prevent "unfair hardship," as permitted by state statute. Wife appealed, alleging that the SGLI benefit was under the "exclusive jurisdiction of the federal government."

The Minnesota Court of Appeals found that the district court‘s order awarding appellant a share of the federal death benefits directly conflicted with the express prohibition under federal law barring the diversion of military death benefits from designated beneficiaries of those benefits.

The Minnesota Supreme Court accepted review. In affirming, Justice Gildea opined that "Under the Supremacy Clause of the U.S. Constitution, a federal law prevails over a conflicting state law."

She noted:

A state law conflicts with a federal law when it is impossible for a private party to comply with both state and federal requirements or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Justice Gildea ultimately concluded that:

The district court‘s award of a portion of the federal death benefits to appellant interferes with the congressional objective expressed in the federal anti-attachment statutes. In these statutes, Congress made clear through the exemption of the federal death benefits from any legal or equitable process whatever that these benefits belong only to the beneficiary.

Despite the inequities that may exist for father, the outcome in this case appears to be appropriate. There really isn't any question about the nature of the benefit as non-marital (even the district court agreed), but the dispute in this case really came down to "equity" under state law against the trumping nature of an unassignable benefit under federal law. Federal law always wins.

One has to wonder whether Levi would appreciate the outcome in this case. At the time he executed the SGLI paperwork, he named only his mother beneficiary. But, that was several years before his parents separated. Did he really want only his mother to realize the proceeds from the policy? Or, did he think she would, logically, share the proceeds with his father? Was mom the better money manager? Many things to speculate about.

Perhaps if the form itself explained to the insured the consequence of naming one parent as sole beneficiary in the event of divorce, he would have listed both parents. Then again, maybe he wouldn't have. Either way, important for anyone obtaining life insurance (in particular, through the SGLI) to knowingly name (or preclude) certain individuals from benefiting from the policy in the event of a divorce.