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Marital and family law can require extra care and consideration because of the emotional aspects involved in dissolving marriages, child custody and property division. When you are involved in a family law proceeding, emotions and feelings can be deeply intertwined in every aspect of the case, and I fully understand these circumstances. Brodin Legal can offer you experienced legal advice, support and representation in any of the following areas:
Alimony, or spousal maintenance as it is called in Minnesota, is governed by Minnesota Statute 518.552. This is commonly a contested issue as some people worry that they won’t be able to make it financially after divorce without spousal maintenance; others worry that having to pay maintenance will sink their financial ship.
Spousal maintenance laws are gender-neutral, meaning either spouse can request it, regardless of sex. However, Minnesota law only permits the court to award spousal maintenance if the requesting spouse:
1. Lacks sufficient property, including marital property divided in the divorce, to provide for reasonable needs of the spouse to meet the marital standard of living, or
2. is unable to provide adequate self-support through employment or is the custodial parent of a child whose condition makes it appropriate for the custodial not to seek employment after the divorce. (Minn. Stat. Ann. § 518.552 (1) (2018).)
It’s very hard to predict how much alimony a judge will order, because judges have a lot of leeway in making these decisions. Unlike child support, there is no standard formula for calculating spousal support in Minnesota. In general, however, the longer you’ve been married, and the greater the disparity in earning capacity between the spouses, the more likely it is that a substantial maintenance award will be made.
If you and your spouse can’t agree on spousal maintenance, you’ll need to provide evidence to the court on the factors set out in Minnesota law. (Minn. Stat. Ann. sec. 518.552.). Once the judge is satisfied that one spouse meets the grounds for maintenance, the court will evaluate the following factors to decide the amount, duration, and type of support:
1. the requesting spouse’s financial resources, including marital property, and the spouse’s ability to meet needs independently
2. the time necessary for the supported spouse to acquire sufficient education or training to find employment, and the probability of finding a job, given the spouse’s age, skills, and education
3. the marital standard of living
4. the length of the marriage, and if one spouse stayed home to care for children or the home, the length of time the supported spouse was absent from employment, and whether education, skills, or the absence from the market permanently diminished earning capacity
5. the supported spouse’s loss of earnings, seniority, retirement benefits, or other employment benefits during the marriage
6. the requesting spouse’s age and physical and emotional condition
7. the paying spouse’s ability to remain financially independent while paying spousal maintenance, and
8. each spouse’s contribution to the marriage, including acquiring property, contributions as a homemaker, or furtherance of the other spouse’s employment or business. (Minn. Stat. Ann. § 518.552 (2) (2018).)
There are various types of spousal maintenance orders in Minnesota upon which a judge will decide. There’s a variety of factors that will determine which model best suits a particular case. For every spousal maintenance decision, a judge must decide the amount of spousal maintenance, the method in which it is paid, and the length of time that said order is in effect. Accordingly, many people refer to spousal maintenance as “temporary” or “permanent.”
Temporary Maintenance
Depending on several factors, the judge may decide that temporary maintenance is best suited. For example, parties with short marriages would likely be awarded temporary maintenance rather than permanent maintenance. A temporary spousal maintenance request may also occur when one spouse needs time to gain employment, education, or job skills required to maintain their livelihood. This form is often referred to as rehabilitative maintenance. Specific circumstances like these require one spouse to pay support for a limited time while the other spouse “gets back on their feet.” Once the temporary period ends, it is up to the individual receiving the maintenance to prove why it should be extended, if so desired.
Permanent Maintenance
Under a very specific set of circumstances, a judge may award a permanent solution regarding spousal maintenance. This type of spousal support occurs after a long marriage (usually more than 20 years), with a substantial disparity between incomes.
Permanent spousal maintenance requires a permanent maintenance order that will lay out the specifics regarding the payments. If it’s unclear whether a permanent solution is needed, provisions in the order that allow for future modifications can be added.
Permanent spousal maintenance will terminate once one or the other spouse dies, a remarriage occurs, or by future court order. It is important to understand that a permanent spousal maintenance award may change if the obligor (person ordered to pay maintenance) chooses to retire from working.
There are several reasons why spousal maintenance may change after an order has been signed. Clerical errors in spousal maintenance payments, fraud, or falsification of information (hidden assets), or an over-turn of a previous order are all common reasons why a change may occur.
Other factors do exist, for example:
In Minnesota, Divorce ends an existing, valid marriage; annulment declares a marriage was never a legal marriage at all. In the eyes of the law, an annulled marriage never existed.
There are extremely limited grounds for annulment in Minnesota. They include:
1. Lack of capacity to consent to marriage at the time of the marriage due to mental incapacity or the influence of drugs or alcohol. The other party must not have known of the incapacity at the time of the marriage.
2. Consent to the marriage was obtained by force or fraud, and the parties did not voluntarily live together afterward.
3. Lack of physical capacity to consummate the marriage by sexual intercourse, and the other party was unaware of this at the time of the marriage.
4. One party could not legally consent to the marriage due to being underage. In this case, the party’s parents or guardian may petition for the annulment.
Whether or not the husband and wife voluntarily lived together after the ceremony, and whether one party kept living with the other party after learning about the incapacity may affect the annulment decision.
The time for requesting an annulment is limited and may be as little as 90 days or less depending on the circumstances. If you believe you are eligible for an annulment in Minnesota, or would like to learn more about the process you should contact Brodin Legal for a free initial consultation at 612-888-4542.
In Minnesota there are two types of custody: Legal and physical.
There are no set rules on who will automatically get custody of the children. There are statutory factors that the court must consider in awarding any decision regarding minor children.
Legal custody provides one or both divorced or separated parents with the authority to make decisions about a child’s education, health, and religion.
If the court orders joint legal custody, both parents are entitled to weigh in on academic, medical and religious issues, and disputes between the parents regarding those issues are resolved in family court, mediation or other alternative dispute resolution.
If the court orders sole legal custody to one parent, the other parent is not stripped of all parental authority, but the child’s major decisions are subject to the authority of the parent with sole legal custody.
Physical custody is the term used to address where a child lives. If the parents have joint physical custody, the child does not reside primarily in one parent’s house but spends relatively equal time residing with each parent. If one parent has sole physical custody, the child resides primarily with that parent. When one parent has sole physical custody, the other parent may have a great deal of parenting time, or very little (or none), depending on the case.
The term “primary physical custody” is being used increasingly. That term reflects the fact that in most cases, neither parent wants the other parent to have “sole physical custody,” but “joint physical custody” may also be rejected if one or both parents disagree with the label and/or if the child does not spend nearly equal time in each parent’s home.
If joint physical custody is awarded there are additional factors that need to be addressed such as: the ability of the parents to cooperate in rearing the children; the ability of the parents to resolve disputes regarding the children; whether it would be detrimental to the child if one parent were to have sole authority over the children’s upbringing; and whether domestic abuse has occurred between the parents.
Minnesota courts are required to look at the evidence and apply 13 separate factors to determine what custodial arrangement is in the child’s best interests. Judges must always focus primarily on what is in a child’s overall best interests.
A judge cannot look at one or two factors and ignore the rest; judges must apply all 13 factors, including:
If either parent is seeking joint physical custody, the court must consider four more factors:
When the court has reached a decision, it must issue a written order with “findings” (an explanation about how the judge applied the facts to each of the factors and how that application supports the new custody arrangement). (Minn. Stat. Ann. § 518.17 (b)(1).)
The court order will state whether physical custody is sole or joint. If one parent receives sole physical custody, the court order will provide a detailed “parenting time” (visitation) schedule for the other parent. If both parents receive joint physical custody, the order will clearly state where the child will live, how long the child will stay in each place, and how the parents will handle transportation responsibilities.
I list all these factors because they are the framework applied by custody evaluators and courts. However, it is a mistake to focus too technically on these factors. It is more important to put serious thought into the reasons why your proposed custody and parenting time arrangement would be better than that which the other party proposes, and to emphasize those points most heavily. At Brodin Legal, we will be able to work with you to identify the best arguments, and to make them effectively.
Due to changes in the law, child support in Minnesota no longer depends on the custody label or on net income. Child support is almost always determined in accordance with the Minnesota Child Support Guidelines. Although deviations from the Guidelines are allowed, it is a rare occurrence unless the parties agree, and even in that case the Court will not necessarily allow it, particularly when public assistance is involved. Child support pursuant to the Guidelines is based on the following factors:
Due to changes in the law, child support in Minnesota no longer depends on the custody label or on net income. Child support is almost always determined in accordance with the Minnesota Child Support Guidelines. Although deviations from the Guidelines are allowed, it is a rare occurrence unless the parties agree, and even in that case the Court will not necessarily allow it, particularly when public assistance is involved. Child support pursuant to the Guidelines is based on the following factors:
1. The gross income of both parties.
2. The cost of work and education related childcare.
3. The children’s portion of the cost of medical and dental insurance.
4. The number of non-joint children of each party (entitles you to a discount).
5. Each party’s percentage of parenting time.
Calculations of child support under the Minnesota Guidelines are very complicated. A good way to get an idea of how it would compute in your situation is to type your data into this very user-friendly Minnesota Child Support Calculator.
Child support may be modified any time there is a substantial change of circumstances, which in practice usually means a substantial increase or decrease in either party’s income, or a change in parenting time, or a change in child care costs. Should this occur, it is very important to serve and file a motion to modify child support immediately, because the general rule is that the Court cannot modify child support retroactive to the date of service of your motion.
The advice and actions of an attorney like Jake Brodin can go a long way to ensuring that your rights are enforced and you obtain the best possible outcome in your respective case.
Court orders are legally binding, and when someone doesn’t comply, the courts consider it contempt. Orders that stem from divorce usually refer to child custody, parenting time and child support, as well as spousal maintenance. A violation of any of these orders might require you to file a motion of contempt; that will bring your former spouse in front of the judge to explain his or her actions.
While you can accuse your ex—or your ex can accuse you—of contempt, the courts have to evaluate things on a case-by-case basis. In order for a judge to make a finding of contempt, the court must have jurisdiction over the case. Additionally, the party who files the motion must prove that the other party violated a court order.
In all cases, in the interest of fairness, the person being accused of contempt has the right to show that he or she has complied with the court order. People who do violate court orders must be given the opportunity to explain the reasons for what they did (or in this case, didn’t do).
Because the court process in Minnesota can be complicated and confusing, many people choose to work with a lawyer when it comes to contempt motions. The result can be jail time, fines, payment of fees or the transfer of property, so no matter which side of the accusation you are on, it might be in your best interests to hire an attorney for help. Contact Brodin Legal today at 612-888-4542.
A default divorce is when the respondent doesn’t respond to the petition for divorce within thirty days of the summons. They not only don’t sign any paperwork, but they also don’t appear in court as requested. This is perfectly legal, but it isn’t in their best interest. Since they never responded to tell the court their side of things, the court gives the petitioner everything they have asked for—by default.
It isn’t as easy when children are involved.
If minor children are involved or if the respondent has made an appearance but hasn’t sufficiently addressed the petitioner’s issues, the court will give the respondent 50 days to make their case before granting a default hearing in these situations. Whereas with no children and no response, the divorce can be granted with no hearing at all.
Some people think that they can delay or even stop the divorce from happening by ignoring the divorce petition. Minnesota is a no-fault divorce state, so a person doesn’t even have to have a reason to get divorced. If your spouse wants out of the marriage, you can’t keep them in it.
The Courts want to protect the rights of everyone involved: petitioner, respondent, and minor children. Therefore, they give the respondent time to respond. If you waive those rights, you will be giving up having any say in your divorce outcome.
The best way to protect your rights is to have an experienced attorney on your side. Brodin Legal will ensure that you get a fair outcome. Contact us today.
In order to be afforded their parental rights, unmarried fathers must establish paternity through a recognition of parentage or court order.
When children in Minnesota are born to married women, it is assumed that their spouses are the fathers. There is no such presumption, however, when children are born out of wedlock. In order to be legally viewed as a child’s father and gain access to their father’s rights, unmarried men must establish paternity through a recognition of parentage or a court order.
Establishing paternity is beneficial for fathers and children alike. The Minnesota Department of Human Services points out that taking this step legally recognizes a man as a child’s father and affords him the right to seek custody and visitation. For children, establishing paternity allows them the opportunity to know both sides of their family. Additionally, it enables them to receive support and benefits from their mothers and their fathers.
In situations when there is no dispute who a child’s father is, parents may establish paternity through a recognition of parentage. This form must be signed by both parents. Once it has been filed with the Minnesota Department of Human Services’ Office of Vital Records, it becomes valid. The man’s name will be added to the child’s birth certificate and he is legally recognized as the father.
It is important for unwed fathers to keep in mind that signing a recognition of parentage means giving up the right to have genetic testing performed before being declared a child’s legal father. Furthermore, it removes their right to a trial to establish parentage. Parents can undue a recognition of parentage by revoking it within 60 days. After the 60 days have passed, the state’s DHS points out that parents have one year in which to take legal action to undue a recognition.
When unmarried fathers are unable to come together with their children’s mothers to establish paternity, this action may be accomplished through a court order. Paternity cases may be initiated by the father, the mother or the county attorney. In such situations, hearings are held to determine if an alleged father is the legal father, according to the Minnesota Judicial Branch. Depending on the circumstances, the court may order a man and child to undergo genetic testing in order to prove whether the man is the child’s biological father.
For unwed fathers in Minnesota, taking responsibility and being there for their children may not be as easy as it would seem. Therefore, men who have had children out of wedlock may find it helpful to consult with a lawyer. A legal representative may help them understand their rights and responsibilities, as well as guide them through the process of being legally recognized as their children’s fathers.
An Order for Protection (OFP) is a court order to stop household or family violence (domestic abuse). It orders the abuser not to hurt you. It can also:
An OFP is not a criminal case. It takes place in family court. If the police have been called, they may start a separate criminal matter because it is against the law to hurt or threaten people.
Some people talk about “no contact orders” but those are different. They generally mean a criminal court has ordered an abuser to have “no contact” with the victim.
Domestic abuse is when someone in your family or household is hurting you physically or threatening you with immediate physical harm. This includes sexual violence, terroristic threats, and not letting you call 911 for help. Here are examples of each of these kinds of domestic abuse:
Physical harm
Threatening you with immediate physical harm
If the abuser has hurt you in the past and is now using words or actions that make you believe they are about to do it again, that is a threat of physical harm
Sexual violence
This means forcing you to have sex or sexual contact with your abuser.
Terroristic threats
Interference with an emergency call means not letting you call 911 for help. An abuser can do this by:
You can get an OFP to stop domestic abuse by family members or household members. This includes:
Getting an OFP for a Minor
You can apply for an OFP for a child if you are the child’s
You can apply for an OFP for yourself and a child if you both have been abused or threatened. You can apply for just the child if the child was abused or threatened and you were not.
The court may also want you to call Child Protection if a child was harmed or threatened.
The court can make temporary decisions on custody and parenting time at the OFP hearing, if you and your abuser:
An OFP usually lasts for 2 years. If the abuser violates the OFP or you are still afraid of your abuser, you can get it extended.
At Brodin Legal, we understand the emotions and complexities that come with any family law proceeding. We are sensitive to the costs of litigation and whenever possible we use cost-effective family law strategies such as mediation and collaborative law. We always strive to resolve family law disputes in a calm and thoughtful matter, keeping the best interests of children at the forefront. You can count on us to do everything in our power to avoid long, contentious and often bitter litigation.
We provide our clients with the personal service and attention they deserve. When you call our firm, you will speak directly to your lawyer, and you will not be shunted off to a paralegal or staff member. We keep clients engaged in their case from start to finish and we provide regular updates.