Family Law Definitions
Divorce. “Divorce” or “Dissolution of Marriage”, is the process through which a marriage is dissolved in Minnesota. In Minnesota we have “no fault” divorce where it does not matter, and the court does not consider why one of the parties is seeking to end the marriage. If one spouse says the marriage relationship is “irretrievably broken” there are grounds for divorce under Minnesota law.
Annulment. In Minnesota family court, annulment is reserved for void or invalid marriages. These are intentionally quite rare.
Legal Separation. A legal separation is a court process wherein the marital assets are provisionally divided and the marital liabilities are provisionally apportioned. A legal separation is not a divorce and is not obtained by simply living apart. Many of the elements of divorce are present in a legal separation; however, it is not necessary for the marriage relationship to be irretrievably broken.
Child Support. Child support in Minnesota is the right of the child, and not necessarily subject to compromise by the parents without consideration for the child. Until 2007 it is based upon the net income of the non-custodial parent. Assuming the non-custodial parent’s income is between $1,001.00 and $6,975.00 per month, child support is twenty-five percent (25%) for one child, thirty percent (30%) for two children, thirty-five percent (35%) for three children, thirty-nine percent (39%) for four children, forty-three percent (43%) for five children, forty-seven percent (47%) for six children and fifty percent (50%) for seven or more children. Net income is defined as the total gross income from any source, minus federal income tax, minus state income tax, minus social security, minus a “reasonable” pension deduction, minus union dues, minus the cost of dependent health insurance coverage, minus the cost of individual or group health, hospitalization coverage (or an amount for actual medical expenses) and minus a child support or maintenance order which is currently being paid. Below $1,000.00 net income per month the percentages taper back to a lower child support amount and at $550.00 per month it is based upon the Court’s determination of a person’s ability to pay. Community service can always be ordered. Income over $6,975.00 per month is not a consideration for child support.
Net income does not include the income of the obligor’s spouse, but does include in-kind payments received by the obligor in the course of employment, self-employment, or operation of a business, if payments reduce the obligor’s living expenses. Net income may not include compensation received by a party for employment in excess of a 40-hour work week provided that (i) support is nonetheless ordered in an amount at least equal to the guidelines amount based on the income not excluded under this clause; and (ii) the party demonstrates, and the court finds that: (a) the excess employment began after the filing of the Petition for Dissolution; (b) the excess employment reflects an increase in the work schedule or hours worked over that of the two years immediately preceding the filing of a petition; (c) the excess employment is voluntary and not a condition of employment; (d) the excess employment is in the nature of additional, part-time, or overtime employment compensable by the hour or a faction of the hour; and (e) the parties compensation structure has not been changed for the purpose of effecting a support or maintenance obligation.
The New Child Support Law. In 2007 child support will be calculated on an income shares basis instead of the net income of the obligor. Under the new law, a 12% parenting expense adjustment is also given for a non-custodial parent who has between 10% and 45% of the parenting time as measured in over night stays. Credit is also given for non-joint children supported by a parent.
Income shares calculation basically means that the total combined income of both parents will be calculated based on gross monthly income. Then support tables will be consulted to see what the FDA says an average family would spend raising children in Minnesota in that income bracket. The resulting average expenditure amount is then apportioned between the parents based upon their pro-rata share of the total incomes. This new formula may result in changed amounts of child support compared to current law. The change in law does not entitle someone to go back to court by itself. A substantial change in circumstance that makes the existing order unreasonable or unfair will still be required. The change must result in at least a $75.00 per month increase or decrease in the support obligation. The statutory moratoriums will still apply. The moratoriums, found at Minnesota Statute 518.18 are one (1) year after a decree and two (2) years after a motion for change in support is decided on its merits. Endangerments of the child, or interference with visitations, are exceptions to the moratorium. There is also a new provision permitting a party to request a six (6) month review of an order establishing custody, parenting time or support, issued under the new law. At the review, the court will review if child support is paid current and if both parties are complying with the parenting time provisions.
Definition Of A Child: A person is a child for support purposes in Minnesota if they are under age 18, or under age 20 and still attending secondary school, or if they are by reason of physical or mental condition incapable of self support. Thus it is possible to be obligated to support your son or daughter beyond age 20 if the son or daughter is handicapped. Minnesota Statute 518.54 Subd. 2.
Child Custody and Visitation and Parenting Plans. Minnesota permits both custody and visitation combination and a joint physical custody arrangement. A party with physical custody or sole physical custody is generally the party that is the decision maker on the major decisions of the child’s life. This person usually provides the residence, food and clothing, and handles the primary parental responsibilities. When one party receives sole physical custody, the other party usually receives visitation (parenting access time) in some form or another. The statute also permits what is called parenting plans where the parties agree on how they will raise the children and/or child in very close detail. A basic custody and visitation order can be modified to include a parenting plan if the parties agree or if the court agrees that the parties need such detailed planning.
Parenting Access Time. The statute has been amended to replace the term visitation with the less inflammatory term "Parenting Access Time". "Visitation" was seen as pejorative to parents who before a break-up were both parents and after were only visitors. These words being changed is intended to reflect a change in attitude as well.
Parenting Time Expediters. Parenting Time Expeditors are neutral persons appointed in a specific case to resolve parenting time disputes for the parties. They are available on a case by agreement of the parents or court order. A list of expediters in your area is available from the court administrator.
Liberal Visitation, Reasonable Visitation and Supervised Visitation. A non-custodial parent who receives visitation can receive various types of visitation, including each of the above. Liberal visitation is generally interpreted to be more than every other weekend and one night a week. Reasonable visitation is generally interpreted to be every other weekend and one night a week. Supervised visitation can range from a visitation where the other parent has to be present to a visitation where the child and the visiting parent must meet in a controlled environment.
Grandparents and Third Parties Rights. Minnesota recognizes that in some instances grandparents need to be awarded custody or visitation of the grandchildren. There are also cases recognizing the need to grant custody or visitation to parties other than grandparents if that is in the best interest of the child or children.
Child In Need Of Protection. In Minnesota there is a form of action called "child in need of protective services", or "C.H.I.P.S." In these cases the county may seek to remove a child from the parents due to the perceived needs of the child. Often the county takes custody in these proceedings and formulates a plan in order to return custody to the parent or parents. If you believe your child is being subjected to abuse or you know of a child that is subjected to abuse, you may report this to Minnesota Child Protective Services or Child Protection. They will investigate. The county social services may seek to remove the child through a court process. The County is represented by the County Attorney and the parents generally must seek private counsel. The court may appoint a Guardian Ad Litem sometimes at the parent’s expense, to assure the child’s rights are represented. False reports of child abuse are also considered negatively in awarding custody in a divorce case.
Multi-state Jurisdictional Cases. Minnesota has passed the Uniform Child Support Custody Jurisdiction Enforcement Act along with several other states. Basically this permits a Minnesota Judge to confer with a Judge from another state in which an action on the custody or support issue has also been brought. The two judges will decide together which court will handle what part of the case going forward. This form of proceeding may have additional expenses due to proceedings in two venues.
Alimony/Spousal Maintenance. In Minnesota alimony is called “spousal maintenance”. It is a common area for negotiation between the parties in reaching a settlement. The statute provides that alimony in long term marriages should be awarded on a permanent basis, subject to review, if the court is in doubt. The requirements for alimony are (i) proof that one spouse has needs beyond their ability to meet them in order to live at a comparable standard of living to that which existed during the marriage; and (ii) the ability of the other spouse to pay such maintenance. Maintenance is not governed by guidelines the way child support is and it can be permanently waived by agreement of the parties.
Marital Property Division. In a divorce the court awards each party his or her fair share of the marital property. In order to successfully get your share you need to know what marital property is in your marital estate. Minnesota recognizes non-marital property to be: (i) the property which was obtained prior to the marriage; (ii) inheritances to an individual and not to the couple; and (iii) certain parts of personal injury recoveries. While the marital property is divided, the non-marital property is usually assigned to the person who owns it. It must be traced from its original receipt as non-marital to its current status and location. Non-marital property, if co-mingled with marital property, can lose its non-marital status. In order to value the assets and get a fair share an inventory is necessary. You can use the intake form referenced above to begin the inventory. Before a break up the information about assets and liabilities may be more available than after breaking up when one party may feel a need to be secretive about what there is. Copies of statements and bills are useful for these purposes.
Debt Division. In a dissolution proceeding, the Court will apportion the marital liabilities in an equitable manner based on the nature of the debt, the various other debts available to apportion, and the ability of each party to pay debt.
The debts that were apportioned in a divorce are sometimes not dischargeable in bankruptcy if apportioned in a dissolution proceeding. An ex-spouse may need an attorney to make and Objection to Discharge in the Federal Bankruptcy Court if the other ex-spouse is filing bankruptcy. Creditors are not bound by divorce decree and can collect from whichever spouse they wish if both are on the account.
Adoptions. In Minnesota the majority of adoptions are handled through agencies. Frequently a Minnesota proceeding will be required to recognize an adoption done in another country. Step parents can adopt step children in certain cases.
Pre-Marital and Post-Marital Agreements. Minnesota permits agreements which define the various ownership interests in property between married or engaged parties. These have also been dubbed Ante-nuptial and Post-nuptial agreements, among other things. There are several strict requirements for such agreements in order for them to be enforceable. They are intended to be controlling or guiding in respect to various assets the parties have or bring into the marriage relationship. They are sometimes used to assure children of a first marriage still receive an inheritance when a parent remarries.
Contempt. Contempt is a process for enforcing a court order. If the order is issued either before or after the divorce, it can be enforced by a contempt proceeding. Contempt is used sparingly and if entry of a judgment will suffice, because it can be made a financial obligation only if the Court prefers to enter judgment. A contempt proceeding can result in a court order requiring compliance with the previous order and ordering the offending party to pay the other party’s attorneys’ fees, ordering the offending party to take specific acts or do specific things, or not do specific things which were previously ordered, and can include sanctions, fines and/or jail time if the person fails to do as such as they were ordered. A court must permit a person who is accused of contempt to appear, defend against or give an explanation of their failure to follow the order, and then have an opportunity to comply. The court can also find someone in contempt for inappropriate conduct during the hearing, such as outbursts, verbal abuse or disrespect toward the Court.
Real Estate Transfers. In the process of divorce one party may be awarded real estate that was jointly owned in the marriage. This transfer is usually done by a decree which also requires the other party to execute a quit claim deed. A quit claim deed is the document granting whatever claim of ownership the signer has to the other person. If the property is Registered Property (Torrens), a quit claim deed is necessary even if the court order says title is transferred unless the additional expense of an examiner’s certificate is undertaken. If the property is abstract property, it can be transferred by the certified copy of either the Judgment and Decree or the Summary Real Estate Disposition Judgment.
Because of several specific technical requirements relating to the validity of deeds, it is strongly recommended that you have an attorney draft and supervise the filing of such deed and divorce documents.
A Summary Real Estate Disposition Judgment (SRDJ) is used to avoid having all of the personal information in your Divorce Decree filed in the real estate title records to assure clean title to future buyers. The SRDJ is filed instead, containing only the provisions from the divorce which pertain to the real estate.
Children’s Education Trust Funds. Although the court will not order such a trust to be set up if the case is taken to litigation and tried, many parties agree to set up such a trust fund for their children, especially if the funds placed in trust are otherwise disputed. Once ordered, based upon the agreement of the parties, the court can then enforce that provision.
District Court. The majority of family law matters used to be decided by the District Court for the county where one or both parties live. This is still the final stop for all cases. Many cases now resolve and come to the court as stipulated agreements so that all the court must do is enter the order after a procedural review. This is also the first battlefield for the most contentious cases. The tool an attorney uses in District Court is called a "motion" and for the court to do anything a motion asking for that "relief" is almost always required. This is called motion practice and it is where technicalities strategy and history are used to obtain a result.
Summary Dissolution Procedure. A streamlined process exists where (i) the couple has no children together; (ii) the wife is not pregnant; (iii) they have been married less than eight (8) years; (iv) they own no real estate; (v) they have no unpaid debt over $8,000.00, excluding car loans; (vi) the total fair market value of their assets is less than $25,000.00; (vii) neither party has non-marital assets worth more than $25,000.00; and (viii) neither party has been a victim of Domestic Abuse by the other. The Court Administrator’s office for each county has simple forms for people meeting all eight of the above criteria, which can be jointly filled out and filed to obtain a divorce.
Mediation. Mediation is a system where a neutral third party helps each person work toward an agreement. Victims of Domestic Abuse are not required to mediate because the parties relationship is likely to have an imbalance of power where the victim cannot negotiate a fair agreement with the other party. This is done by helping each party focus upon common objectives and needs. Each party trades things or rights for other things or rights they value more. If there is no agreement then the mediation ends. The resulting agreement is reduced to writing and signed by the parties and submitted to the court for an order including those terms.
Arbitration. Arbitration is more informal than court and is also designed to resolve an issue between parties but an arbitrator is a neutral who is empowered to decide some or all of the issues for the parties. Their decision becomes the law of the case and enforceable in Court unless brought to court for modification.
Default. Default occurs when a party who has been served a Summons fails to respond. In that instance the petitioning party gets a court decision in their favor along the terms requested in the Petition. Settlements can also be handled as if they are defaults to speed them through the process. Default judgments can be revised and fixed if the defaulting party has a good excuse for defaulting.
Collaborative Law. Collaborative law is a process where the clients choose collaborative law attorneys. The two clients and two attorneys agree to make the case settle by mutual agreement. They further agree that both attorneys will quit if an agreement cannot be made. Financial, psychological and other specialized experts are often used on behalf of both parties as neutrals to give guidance in other professional disciplines to help reach an agreement that is best for both parties and the children. Unique situations are readily adopted if they serve both parties without requirement that the solution be one a court could impose. If it is fair and based on an agreement the court will enforce it.
Post Divorce Issues
Department of Social Services and Child Support Magistrate Cases. Minnesota has instituted a procedure where child support issues can be handled in an efficient and more informal forum. This procedure is controlled by a Child Support Magistrate as opposed to a Judge or a Family Court Referee. A Child Support Magistrate is authorized to set child support and various related payments and affirm agreements between the parties with an order. Special rules have been formulated for the efficient administration of this process. It is designed to be used with or without attorneys. Issues of custody cannot be decided by a child support magistrate.
Recalculation of Child Support. Every two years there is an automatic cost of living increase or (COLA) on most child support decrees. Notice of this cost of living increase is mailed to the person obligated to pay child support. Often a person may wish to contest a COLA child support increase. For example, that person may not have received an increase in pay in the past two years. The objecting party must reply to the court as instructed in the notice. Failure to respond results in an increase in the child support obligation automatically being applied. Additionally, if a party believes the circumstances have changed so that the original Judgment and Decree is no longer fair, the party can move either before a Child Support Magistrate or in the District Court to amend the Judgment and Decree with a higher or lower child support obligation.
Unemployment or Promotions and Child Support. When circumstances change dramatically, such as a cut in pay or a raise, if it results in either 20% or $50.00 change in the support amount due, a motion to amend the order or decree to recalculate support is necessary. This motion is particularly important if a person has become unemployed and owes child support. The person should immediately go to the Court with a motion for reduction of child support because the court process takes time. Likewise, if an obligor has substantial increase in earnings, the party receiving child support may make a motion for an increase in child support. Even if the parents agree to another amount, the Court will not enforce the agreement until the order in existence is changed.
Child Support Collection. Child support collection actions usually involve both contempt and other sanctions available for non-payment of child support. These other sanctions include intercepting tax refunds, revocation of occupational or sports licenses and suspension of driving privileges. Many times these actions are brought by the County on behalf of the recipient of oblige and are heard by a child support magistrate. A Judge will hear the contempt matters and appeals.
Collection of Maintenance. When a party fails to make his or her maintenance payments as ordered, the Court can compel payment. This is usually done when the party seeking the maintenance makes a motion requesting the court’s help. For a time, the counties were not collecting for maintenance-only-recipients through income withholding, but a change in the law in 2005 now requires them to resume collections through income withholding.
Enforcement of Other Provisions of Divorce Decrees or Court Orders. Court orders and divorce decrees can be enforced by contempt or entry of a judgment. If the decree is from another state it can still be enforced in the State of Minnesota after certain procedures have been followed. If the person obligated to follow the order has moved from Minnesota to another state, often the best place to bring the action to enforce the order is the state in which the obligated party now resides, based upon your Minnesota Decree.
Custody Modification. Sometimes, although a court order awards custody to one party, over the course of time, it becomes necessary for the child to reside with the other party. When that happens, the custody order can be revised. If the child has been integrated into the home of the other parent with the consent of the parent who is originally awarded custody, the court can amend the custody order to reflect the actual facts. If the child’s best interests are not being served in the custodial home, yet the child is not being endangered in the custodial home, the court will usually not change the custody order. Unless there is at least an endangerment of the child development in some form, changing visitation should not be as difficult, however, so more parenting access time may be a partial solution. The court also usually requires two years to pass between reviewing orders for custody or visitation.
Moving with Children. A parent with sole physical custody is permitted to move away from the other parent with either: (a) the permission of the other parent in writing; or (b) the permission of the court. In 2006 the law was changed to provide that the person seeking to move out of state with the children must prove that it is not a move for the purpose of interfering with the other parent’s relationship with the child and that the move is in the child’s best interests. Best interests for a move is defined by 8 factors which the court must consider in making the determination. If the person seeking to move is a victim of domestic abuse the burden of proof starts on the person opposing the move. Parents with joint physical custody are not as free to move. In many cases the parent moving away must pay the increased cost of visitation for the other parent. The court will check to be sure the party moving is not moving simply to impede the visitation of the other party. Therefore, documentation of a job or a new spouse who is relocating is usually necessary to obtain court permission.
Other Issues
Domestic Violence or Domestic Abuse. If you are in immediate physical danger, take your children, assuming your child is not the perpetrator, and find safety with friends, family, or a shelter first. Once you are safe, seek the Court’s help.
Orders for Protection are available to victims of domestic violence. Domestic violence can be violence between married couples, parents and children, children and unrelated parties living in the same household and between people who have a significant relationship, such as people with children in common. Orders for Protection can require the perpetrator not to have contact with the victim and can require an abusive party to move. They can grant temporary custody and set visitation, require temporary child support to be paid, require temporary maintenance to be paid, and order restitution for damage done by the perpetrator. When orders for protection are issued, it affects the perpetrator’s rights to own firearms. When orders for protection are issued, it results in arrest of the perpetrator if the perpetrator violates the order. In cases of criminal domestic assault there can also be a no contact order in the criminal case brought by the City or County prosecutor in the criminal court. This is separate from an order for protection which is conducted in civil court.
An initial Order For Protection can be issued without the perpetrator being present in court. This is known as an Ex-parte Order. The victim can go to the courthouse and petition for such an initial order without an attorney. After the initial order is issued, there is a hearing that either party can request with both parties present in court, which occurs between five (5) and seven (7) days later. The courtrooms used for these hearings are more secure than most, so it is a safe place for both parties. You should bring witnesses with you to that first hearing as in many courts the evidentiary hearing is held at that time to see if the final order should be issued and for how long it should be in place. If the Respondent refuses to admit committing the domestic violence, the court will hold an evidentiary hearing. Unless the Respondent has also petitioned for an order for protection, the Respondent is not entitled to one by order of the court. It may be possible for you to agree to one that is mutual being issued. It is at this point where petitioners frequently need an attorney to assist them, although advocates are often available in some counties. These advocates have experience in obtaining orders for protection. Advocates are not licensed attorneys, but are very experienced in obtaining orders for protection and in most cases can help you for much less than what an attorney would cost if you are the victim. If you are the Respondent, there are no advocates and you must hire an attorney if you want someone to help you protect your rights. Even if you could do it yourself when there was no crisis, once you are in a crisis like this, you are less effective and an attorney is useful to help you deal with the legal system. You can deal with all of the other stresses, the attorney can guide you through the Court aspects as you deal with the relational issues.
Advocates serve a purpose in the process different from that of an attorney. They are a source of referrals to other government services, can serve as a support person while you are in court and the attorney is arguing the case to the judge and they are often more available and accessible than attorneys for discussions on relationship dynamics. If you hire an attorney, or use an advocate, or both, you must still help gather necessary information and witnesses.
Violations of Orders for Protection can occur by the protected party inviting the restrained party to contact them or come over or the like. Such violations are still treated as violations so if you have an order for protection against you follow the letter of it and resist any efforts of the other person to entice you into a violation. Orders for protection generally expire in one year or on such date as stated in the order. Before they expire they can be amended by motion to the court. Some courts may be reluctant to issue another order for protection if the party requesting one has dismissed a previous order for protection against the same perpetrator, so if you are considering dismissing or revising one keep that in mind. Regardless, if you are in danger and in need of an Order for Protection, seek one anyway.
Cohabitation Agreements. It is often advisable for parties who are not married, but who own assets together, to enter into cohabitation agreements. Cohabitation Agreements define their rights and interests in the property purchased. For example, when parties go into a business venture, they often make partnership agreements for similar reasons. Likewise, it is quite reasonable to enter into a Cohabitation Agreement defining what happens if the property is lost, destroyed or damaged, or it the parties split up. Cohabitation Agreements also define who owns items of personal and real property and what the other party’s contribution will be to those things. These cohabitation agreements can provide for many of the things the marriage relationship implies, in a contract for parties who do not wish to be married (or cannot be married under law as it currently stands). These agreements help you deal with family, friends, employers and insurers of your significant other when they can no longer fill that role. The agreements and powers of attorney and titling of assets can work to protect you, your assets and your significant other while doing nothing, leaves you both at risk.
Partition Actions. When unmarried people purchase real estate but then split up the action used to separate their equity in the property is a partition action. This is a specialized action used only to split the undivided real estate interests of owners. Related personal property can sometimes be included in the division in a partition case. The Court will assume ownership based upon proof of money or labor contributed to the value of the premises.
Replevin Actions. When unmarried persons buy personal property together and need to split it up, or if one person takes the property of another, a replevin action is required.
Harassment Restraining Orders. Parties who are not related and/or who do not have the necessary significant relationship required for an Order For Protection, may still seek a Harassment Restraining Order against someone for repeated unwanted communication or other harassing conduct. Many of these actions are started by a trip to the courthouse and filing without an attorney. Often, if it becomes contested, it is helpful to have an attorney to be sure the proof you present is the best you have, and that is enough to win. Anyone can apply, but winning is much more difficult. If you are accused of harassing someone it is helpful to have an attorney to be sure the other side produces the proof and has facts that entitle them to an order at all.
