Jurisdiction and Venue
How long do I have to reside in Minnesota before I can file for divorce?
According to Minn.Stat. §518.07, no dissolution shall be granted unless “one of the parties has resided in this state, or has been a member of the armed services stationed in this state, for not less than 180 days immediately preceding the commencement of the proceeding.”
Can my case be transferred from one county to another county?
Generally speaking, a marital dissolution proceeding or custody case remains venued (located) in the county where it was originally filed, even if neither of the parties still reside in that county. As such, a case filed in one of the Twin Cities metropolitan area counties will typically remain in that county for as long as the Court has jurisdiction over the parties. However, if there are substantial reasons for changing the venue (i.e., the divorce case involves children, and the spouse who received primary physical custody moved more than one hundred (100) miles away from where the case was originally filed), the venue may be changed following a formal motion on the issue.
Can the Judge assigned to my case be removed?
According to Minnesota law, each party has one opportunity very early in the case to remove a judge or referee. Otherwise, it is very difficult to have a judge removed from a case once he or she has already presided over a hearing or made a decision. In fact, unless the judge is somehow related to one of the parties, or has a close relationship to one of the parties, the judge can only be removed if the objecting party can prove “actual bias” on the part of the judge. This means that a motion to remove a judge will typically fail unless the moving party can demonstrate that the judge has overtly expressed hostility and animus towards him personally — which usually does not happen. According to case law, the facts that a judge has abused his or her discretion, or has made decisions which are contrary to the law, are generally not even considered to be sufficient reasons to have a judge removed.
Does a father have the same right to or opportunity to be awarded physical custody of his children as the mother does?
Although Minnesota’s child custody statute (Minn.Stat. §518.17) is gender neutral on its face, and even says that there is to be no presumption in favor of the “primary caretaker”, we at the Nygaard & Longe Law Office believe that gender bias does exist with regard to fathers being awarded custody of their children. Fathers seem to have the same right to pursue custody of their children, but whether that right is meaningful is another matter entirely. We believe that, for a variety of reasons, including cultural and societal assumptions regarding the role of men in families, there is a belief that women are better “nurturers” and care providers than men; which apparently leads to the assumption that they can provide better care for their children.
How old does my child have to be before his or her custodial preference is taken into consideration?
According to Minnesota case law (Ross v. Ross, 477 N.W.2d 753 (Minn.App. 1991)), the preference of an “older teenage child” is supposed to be an “overwhelming consideration” with regard to custodial placement. The case itself cites a 1929 Minnesota case involving the preference of a 12½ year old child; but, in reality, the age where the preference is really given weight appears to be 14. Other case law indicates, however, that the preference of an older child can be ignored if the preference is the product of manipulation (“I will purchase you a vehicle if you live with me”) or if the modification of physical custody is not otherwise in the child’s “best interests”.
What is the difference between sole physical custody and joint physical custody?
The answer to this question is complicated by the new child support guidelines and other family law changes which went into effect on the 1st of January, 2007. The primary differences between sole physical custody and joint physical custody under the old statutory scheme occurred in the areas of child support; removal of the child from the state for purposes of changing the child’s residence; and the intangible factor of being treated more as an equal with regard to parenting by the other parent and other people involved in the child’s life. The new child support statute, however, appears to overrule the case law (Valento v. Valento, 385 N.W.2d 860 (Minn.App. 1986) and Hortis v. Hortis, 367 N.W.2d 633 (Minn.App. 1985)) which mandated reduced child support for those who had the legal label “joint physical custody”. Under the old regime “joint physical custody” did not require an absolutely equal division of time, and the child support reduction was based upon the amount of time the child spent in each parties’ home (i.e., a joint physical custodian was entitled to a discount even if he only had the children twenty-five percent (25%) of the time during the year). The new statute, however, only allows for a realistic reduction in child support (in the only apparent recognition of the expenses which both parties incur in their homes caring for the children) when the would-be child support obligor has the children at least 45.1 percent of the time during the year. The new parenting time statute (Minn.Stat. §518.175 subd.3) also presumably makes it more difficult for the “custodial” parent to move with the child from the state. As a result, the only real difference remaining between sole physical and joint physical custody could well be that intangible quality of being considered a fully equal parent. The point (or lesson) is that if one wants to be an involved parent, he or she needs to advocate for having the children at least one half of the time.
Are there any state guidelines with regard to how much parenting time should be allowed to the "noncustodial" parent?
Legally speaking, there are no specific guidelines regarding what minimum parenting time should be for the noncustodial parent. However, the new parenting time statute (Minn.Stat. §518.175) does create a presumption that the “noncustodial” parent should have the children at least 25 percent of the time during the year, as calculated by counting overnights. In addition, the Minnesota Supreme Court has also published “guidelines” (A Parental Guide to Making Child-Focused Parenting Time Decisions (2001)) containing suggestions regarding what parenting time should perhaps be; but at the end of the day these suggested guidelines are (from our perspective) either far too restrictive, or too vague and equivocal to be meaningful.
Can I be denied parenting time with my children because I am behind in my child support obligation?
According to Minnesota’s parenting time statute (Minn.Stat. §518.175), a “parent’s failure to pay support because of the parent’s inability to do so shall not be sufficient cause for denial of parenting time.”
Can I stop a cost-of-living adjustment from occurring?
The statute governing cost-of-living adjustments of child support (or maintenance) obligations (Minn.Stat. §518A.75) states that if the “obligor establishes an insufficient cost of living or other increase in income that prevents fulfillment of the adjusted maintenance or child support obligation, the court or child support magistrate may direct that all or part of the adjustment not take effect.” For example, the adjustment should not take place in a circumstance where an obligor changed jobs and is earning less income than what he or she was at the time that the last Order was entered. The adjustment is supposed to occur biannually on the 1st of May.
Will the new child support guidelines result in a lower child support obligation in my case?
Since both parties’ gross incomes are to be taken into consideration under the new guidelines, the answer depends upon what your income is, and what your former spouse’s income is. However, we at the Nygaard & Longe Law Office believe that the formula used in the new guidelines still does not provide enough financial relief to noncustodial parents; and that the application of the new guidelines will, in many, if not most, cases result in equal or higher child support obligations than what was the case under the old statute, unless your former spouse earns a substantial income herself and/or you have a very significant amount of parenting time (such as over 45.1% of the time during the year). Minnesota’s Department of Human Services does provide a calculator which estimates what child support should be based upon the parties’ gross incomes.
Can the new child support guidelines be applied to my case?
According to Minn.Stat. §518A.39 The new guidelines are to be applied in any new child support cases, but are not supposed to be applied to any existing child support obligations until 2008 unless, generally, there has been a twenty percent (20%) deviation (up or down) in the child support obligor’s gross income since the last child support was entered.
Does my spouse have an interest in my employer’s pension plan even though it was earned entirely by me?
Yes (don’t shoot us, we’re only the piano players). Minn.Stat.§518.003 states that “[a]ll property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property regardless of whether title is held individually or by the spouses in a form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.” The theory is, in part, that your spouse’s contribution towards maintaining the family household enabled/allowed you to earn your income and your retirement interests.
When can I receive my share of the equity in the marital homestead when it was awarded to my former spouse for the benefit of the children?
Minnesota case law states that a Court may defer a noncustodial parent’s realization of his or her portion of the equity in a marital homestead if there are minor children and the Court finds that it would be a “hardship” for the “custodial” parent to pay the equity to the “noncustodial” parent. As a result, the noncustodial parent can be required to wait until the minor children reach the age of majority before he or she can receive his or her share of the equity in the marital homestead. On the hand, our office believes that given the facts that the parties are separating and are going to have maintain separate households; the preferable result is for the individual leaving the marital homestead to realize his/her equitable interest in the home at the time of the initial marital dissolution so both parties can at least be in a position where they can provide decent homes for their children.
Does my former spouse, who was awarded spousal maintenance, have an obligation to find gainful employment?
As is the case in many areas of family law, the answer to this question is murky. It does make a difference as to whether the maintenance award is temporary (rehabilitative) or permanent. Generally speaking, recipients of temporary maintenance are under an obligation to find gainful employment and/or enhance their income potential, and their failure to do so can result in a denial of any request for an extension of, or increase in, the maintenance award. On the other hand, recipients of permanent spousal maintenance are not required to improve their employability or enhance their earning potential, although they are at least required to be employed to the best of their ability. Given the uncertainties relating to an award of spousal maintenance, the most prudent path is to avoid or limit the obligation as much as possible in the initial dissolution proceeding, which is done by demonstrating that the other party has the assets or earning capacity to become self sufficient without a contribution from you.
Would my spouse be able to obtain an Order for Protection (OFP) against me even though I did not hit her or cause her any harm?
Domestic Abuse is defined by Minn.Stat. §518B.01 as physical harm, bodily injury, or assault; the infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats. As such, the actual language of the statute does not require that there be an actual physical injury to justify the issuance of an OFP. Instead, an OFP can be issued merely if the person alleging the abuse indicates that he or (more likely) she was fearful of an act of domestic abuse or domestic violence. There are two concerns here: (1) That Courts seem to be more likely to grant relief to women because men are “big and mean”, and women are “weak and frail”; and (2) that women sometimes lie regarding their “fear” of abuse in order to simply get the men removed from the house.
We have also obtained favorable results for mothers in marital dissolution and custody proceedings.