Fequently Asked Questions

In today's depressed real estate market, I often encounter the situation where a spouse had a non-marital interest in the marital homestead at the time of marriage; but at the time of divorce, the house is upside down. So the question arises as to whether or not the spouse who formerly had the non-marital interest is entitled to any kind of credit in the overall divorce property settlement.

The answer is no. The burden of proof is on the party claiming a non-marital interest to trace that interest to a currently-existing asset. If your current homestead is as far as you can trace your non-marital interest, and there's no longer any equity in your homestead, then you're just out of luck on that issue. It's that simple.
Do you want to stop your divorce and save your marriage? Cases where only one spouse wants the divorce are fairly common. People often mistakenly assume that they cannot contest the divorce itself. This is simply false. You certainly do have the right to contest the divorce. “No fault divorce” does not equate to “divorce on demand.” [1]

In order to obtain a divorce in Minnesota, the Petitioner bears a burden of proof, by a preponderance of the evidence, that the marriage is irretrievably broken. [2]

If one party denies under oath that the marriage is irretrievably broken, the Court may not grant the divorce without finding irretrievable breakdown, after a hearing and consideration of all relevant factors, including but not limited to: 1) the circumstances that gave rise to the commencement of the proceedings; and 2) the prospect of reconciliation. [3] The Court may not find irretrievable breakdown as long as a reasonable prospect of reconciliation exists. [4]

In addition, a finding of irretrievable breakdown must be supported by evidence that either a) the parties have lived separate and apart for a period of not less than 180 days immediately preceding the date of service of the divorce petition; OR b) there is “serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage.” [5]

All that being said, be aware that contesting the divorce will add to the duration and expense of the case. Contesting the divorce itself can buy you some time during which to pursue reconciliation, and can be the leverage to obtain your spouse’s agreement to therapy or other reconciliation efforts, but at the end of the day, a persistent party will be able to obtain the divorce.

At the same time, if your marriage is very important to you, contesting the divorce may be a way to save it. I have seen many reconciliations over the years, even in the worst of circumstances. It’s uncommon, but it does happen, and is always wonderful to see.

So in conclusion, if you want to stop your divorce and save your marriage, don't give up, because you have the right to a trial on this issue, and because of the tardiness of the courts, by insisting on your right to trial on this issue, you can thereby buy yourself as much as 1 to 2 years during which to save your marriage.
Regardless of which parent has custody, both parents have a right to access and to receive copies of school, medical, dental, religious training and other important records and information about the minor children.
NO, THEY ARE NOT! I can’t tell you the number of times someone comes to me with this same sad predicament. For several months or years, the party has been paying less child support or spousal maintenance by verbal agreement with the other party, only to be socked later with an arrears judgment for $20,000, $30,000, or $40,000, as the case may be. The only way to protect yourself from this is to have the agreement drafted up and approved by the court in writing.
In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody. [1] Still, the child’s preference alone is an insufficient basis for modification of custody. [2] There must be a showing of endangerment, at least on an emotional level, in order to modify custody. [3] The child’s preference is an important factor and often a sine qua non of a showing of endangerment.
See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)].
Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old’s preference to change custody).
Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court’s denial of evidentiary hearing in case involving emotional abuse) (citation omitted).
Strictly speaking, a new spouse’s income may not be considered when determining spousal maintenance or child support issues with a prior spouse. [1]

That said, to the extent a new spouse, cohabitant, or other occupant of a party’s household contributes to a party’s household expenses and thereby reduces a party’s own living expenses, that reduction in living expenses is relevant to support determinations.
In equal numbers, prospective clients come to me either excited about a perceived ace-in-the-hole because of the other spouse’s adultery, or worried about his or her own adultery. Neither attitude is warranted. The Courts couldn’t care less about anyone’s adultery in and of itself, or the immorality of it. Half the divorces they see involve adultery. In fact, there’s a very real danger that pressing this issue will backfire, making the accuser appear obsessive and jealous.

That said, the adultery can be relevant in some ways, such as:

1. If the affair consumed a lot of a spouse’s time, the extent to which the spouse was off with his or her paramour at the expense of parenting is very relevant to custody determinations.

2. If the paramour is — or would be — a bad influence on the children, either because of a criminal background, mental illness, chemical or alcohol dependency, or because the children hate him/her, etc, that also is very relevant to custody determinations.

3. If a spouse has spent a lot of marital earnings or assets on the affair — or incurred credit card debt to pursue the affair — this can be relevant to the property settlement in the divorce.

The key is to be extremely careful how one approaches this issue.

As a tactical matter, I’ve noticed that if a spouse is having an affair, that spouse can often — but not always — be very concerned about two things: 1) avoiding exposure; and 2) speeding up the divorce. Knowing this can therefore give you some good leverage in settlement negotiations.
Minnesota law allows a parent, legal, guardian, teacher, or other caretaker of a child or student to use "reasonable force" to "restrain or correct the child." [1] That said, in the context of a pending divorce or child custody case, it is inadvisable to use any kind of corporal punishment at all. Many of the guardian ad litems, custody evaluators, psychologists, and others involved in the family court system have strong feelings against the use of any kind of corporal punishment or physical correction of a child at all; and a parent's use of corporal punishment might become a reason why one of these professionals makes custody, parenting time, or other recommendations that are contrary to your wishes. Also, the use of any physical force at all can be exaggerated by the other parent, who may do so in order to gain an advantage in a custody and parenting time contest, even to the point of bringing a petition for an order for protection against you on behalf of the child. It is far safer, therefore, to use alternative disciplinary techniques, such as time-outs, verbal reprimands, withholding of privileges, etc.
Either spouse may close a credit card account or other unsecured consumer line of credit on which both spouses are contractually liable, simply by giving written notice to the creditor. [1]

This is usually a very smart thing to do, to prevent the other spouse from racking up debt in your name. I’ve seen it happen countless times. And while this can be accounted for, it’s much easier to just avoid the issue in the first place. Also, remember that even if the Court orders your spouse to assume this or that joint credit card debt, the Court has no authority to absolve you of your contractual liability to the creditor. So the joint debt will remain on your credit history, and will still be your problem to deal with if your spouse ever stops paying or pays late.
Minnesota has no requirement for a waiting period or mandatory separation period before seeking a divorce. However, in order to commence a divorce in Minnesota, one or the other spouse must be a resident or domiciliary of Minnesota for 6 months immediately preceding commencement of the divorce. [1]

This can be problematic if a party needs to commence a divorce in Minnesota immediately, but neither party has yet been residing here for the requisite six-month period. In such cases, one should seriously consider a legal separation, which has no length-of-residency requirement, and which can afford much of the relief afforded by divorce, such as determinations of property possession, custody, parenting time, child support, and spousal maintenance. [2] Later, after the six-month residence requirement is satisfied, the case can be converted to one for divorce.
If divorce appears imminent, there are a few things that one should consider doing to prepare (ideally after consulting an attorney):

  • Take your half of funds from joint bank accounts and transfer it to separate accounts in your name only, before your spouse takes ALL of it. (I say half, but a fair amount to transfer could be more or less than that depending on the circumstances).

  • Close joint credit card accounts, before your spouse racks up more debt in your name. (An exception would be where you yourself need to rely on the credit card for upcoming expenses).

  • Find a source of funding for attorney’s fees, whether from savings, credit cards, or family members.

  • Make copies of important documents which identify all of the assets, debts, and income of both parties, and put these somewhere where your spouse does not have access to them.

  • Needless to say, if the divorce is imminent, it makes sense to retain an attorney as soon as possible — even before you are served — so that you can proceed with proper guidance during the early critical stages of the divorce process.

  • If there is a chance your spouse may seek an Order for Protection or Harassment Restraining Order against you — whether legitimately or fraudulently — it is important to have a plan in case you are suddenly served with one and are barred from your home, with no court hearing set for two weeks. If that happens, do you have a place to stay? Cash and important documents? A spare change of clothing?
If you fear your spouse may make false claims of abuse against you, in order to get you quickly ordered out of the house, or to gain an advantage in a custody dispute, there are a couple of things you can do to help protect yourself:

1. Never let your spouse suck you into a fight — even a verbal one. Once it starts getting heated, just withdraw from your spouse’s presence. While this won’t protect you against a spouse who is willing to make up a false abuse allegation out of whole cloth, it will protect you from a spouse who is trying to set you up to do something which will allow him or her to claim s/he was physically harmed or put in fear of imminent bodily harm.

2. While this is not always feasible, it is ideal to always have a friendly witness present whenever you are in the presence of your spouse or significant other.

3. Although it probably wouldn’t be feasible to do around the clock, if you are afraid of a false abuse allegation arising out of a particular encounter, you can protect yourself by videotaping the encounter. Just don't do it secretly.
From time to time a client will come to me, excited that he or she has figured out a sure-fire way to win custody, because he or she has personally diagnosed the spouse with Borderline Personality Disorder (BPD), Parental Alienation Syndrome (PAS), or some other mental illness.

Unfortunately, nobody is going to take your word for it. For such an argument to carry any weight whatsoever, you will have to obtain a diagnosis from a qualified professional. This normally is accomplished through the custody evaluation process. Other times, you may need to hire your own expert.
“Physical custody” is defined as "the routine daily care and control and the residence of the child." [1] In practical terms, it generally refers to who maintains the "home base" or “primary residence” of the children, and who has the children most of the time, particularly during school.

Like legal custody, physical custody can be “sole” [2] or “joint”. “Joint physical custody” means that "the routine daily care and control and the residence of the child is structured between the parties." [3] Unlike joint legal custody, joint physical custody is the exception rather than the norm, and is usually only granted if both parties agree to it.

Judges often tell litigants not to argue over the physical custody “label.” They often say that it is not important. Years ago, the physical custody label had a major impact on the issue of child support and out of state moves. Because of statutory changes, that is no longer the case at all. There is debate in the bar as to what if any legal impact the physical custody label has now that those two considerations have been removed.

That said, although the legal impact of the physical custody label is debatable, if you are the primary parent, it is still preferable to have sole physical custody than joint physical custody. Conversely, if you are not the primary parent, it is still preferable to have the joint physical custody label than not to have it. This is because of the uncertainty over how a future court, evaluator, parenting consultant, guardian ad litem or others might interpret that label.
Minnesota Statute section 518.003, Subdivision 3(c).
2. Another term for “sole physical custody” is “primary physical custody,” which means the same thing.
3. Minnesota Statute section 518.003, Subdivision 3(d).
Judges, evaluators, and guardians will often pontificate about the virtue of compromise and settlement, as if this were the ultimate objective of any reasonable person, rather than as a means to an end. They speak as if both parties are equally to blame for a failure to settle, when in fact such failure is often the result of only one of the parties, who is being excessively greedy, obnoxious, stubborn, or selfish.

It is important to settle cases amicably and cooperatively whenever possible, but this should not have to be at the expense of fairness for you and your children. With respect to child custody and parenting time issues, it doesn’t make sense to agree to a proposal that is worse than the worst reasonably likely outcome that the Court would order.

With respect to financial issues, this same rule applies, as modified by the additional consideration of attorney’s fees. For example, it might be very likely that the court would award you $10,000 more in assets than your spouse is proposing, but if it will cost you $20,000 in attorney’s fees to litigate over it, it doesn’t make much sense from a purely practical, financial standpoint to do so.
It depends on how bad it is. Half of the divorce cases out there involve one or the other party being on anti-depressant medications, so that in and of itself won’t matter much. It really depends on how severe the mental illness is, and how it affects your parenting. If the mental illness negatively affects your parenting, or poses a danger of harm to the children, that will obviously be more relevant. And unless your mental health records are already sufficient for a custody evaluator to assess your mental health, you can expect that a custody evaluation will include a psychological evaluation as well.
Often times fathers come into my office thinking that a fight for custody is futile because of bias. Conversely, mothers often make the mistake of thinking that an award of custody to the mother is virtually guaranteed. Neither is true.

Legally, there can be no discrimination based on the sex of the parent. For a father willing to bear the time and expense of the contest, chances for custody are more or less equal to those of the mother, all else being equal. Having said that, I do think there is some lingering bias, even though judges and custody evaluators and guardians ad litem will always deny it. Often I do not believe it even occurs on a conscious level. Yet there is a gut feeling one gets, representing a father, that the job is just a little more difficult, or representing a mother, that the job is just a little bit easier.

In conclusion, my advice to fathers is that they should not despair. If the children would be better off in the father’s custody, that is worth fighting for, and is winnable. I have gotten many fathers custody, even in the most dismal of predicaments. For mothers, my advice is to take nothing for granted. Against a determined father, the loss of custody is a very real possibility which you should take very seriously if custody is important to you.
I am often asked whether it is permissible to kick one’s spouse out of the house and change the locks. The short answer is: NO. Furthermore,

1. It doesn’t matter that the house is titled solely in one spouse’s name or neither spouse’s name.

2. It doesn’t matter whose name is on the lease.

3. It doesn’t matter who makes the mortgage or rent payments.

4. It doesn’t matter if your spouse is making your life a living hell.

The only way to force a spouse out of the house where he or she resides is to get a Court Order. If you or your child has been the victim of domestic abuse by your spouse, you can get an Order for Protection immediately, which will bar your spouse from the house. Otherwise, absent an agreement, the soonest you’ll get an order for exclusive occupancy of the home would be with the issuance of an Order for Temporary Relief, which usually takes anywhere from about one to five months to obtain, depending on the county, the judge, and the speed of your attorney.
Pursuant to statute, if the other parent has been awarded parenting time, you may not move the residence of the children out of state without:

Agreement of the other party; or
Court Order. [1]

Except in cases of domestic abuse, the burden of proof rests with the parent requesting to move the child out of state, to prove that the move would be in the child’s best interests. [2]

In determining the best interests of the child in the context of proposed out-of-state relocations, the Court considers the following non-exclusive list of factors: [3]

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life;

(2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;

(4) the child's preference, taking into consideration the age and maturity of the child;

(5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person;

(6) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;

(7) the reasons of each person for seeking or opposing the relocation; and

(8) the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse, as defined in section 518B.01.

There is an exception to these rules where the other parent has not been granted any parenting time in the divorce decree, in which case you do not need his or her permission or a court order in order to move the children out of state.

Likewise, if you are the mother of a child born out of wedlock, and no custody order has ever issued, you do not need the father’s permission or a court order in order to move the children out of state. (Although it may not be strategically wise to do so, especially if the father has exercised regular contact).

Grounds which the courts in the past have recognized as valid reasons to permit out-of-state relocation are: a better job opportunity in the other state; [4] and joining a fiancé who resides in another state. [5] These reasons do not guarantee that permission will be granted, but they have been recognized as legitimate grounds for seeking such permission.

Moving a child out of state is a decision requiring a lot of strategic planning. Ideally, you should contact an attorney several months before your intended departure date.

Lastly, I would observe that although the statute does not specifically address proposed out-of-country moves, the same considerations that apply for out-of-state moves will obviously apply for proposed out-of-country moves as well.
Under both Minnesota law, [1] and federal law, [2] as long as you yourself are a party to the conversation, it is lawful for you to record that conversation, even secretly. Furthermore, such recordings happen often enough in family practice that you are wise to assume that any telephone conversation with your spouse is in fact being recorded, and to temper your speech accordingly — i.e., no anger, name-calling, or spiteful speech of any kind.

Such recordings of your spouse may be used in evidence, provided they’re relevant. However, they shouldn’t be used unless they are very compelling and necessary evidence of the point you’re trying to prove, because otherwise their usefulness is outweighed by the tendency of such recordings to make you look obsessive.

A trickier question is whether you may record the other parent's conversations with the children. Under the doctrine of "vicarious consent," as long as a parent or guardian has "a good faith, objectively reasonable belief that the interception of telephone conversations is necessary for the best interests of the children," then he may consent to the interception (i.e. listening in or recording the call) on behalf of the children. [3] However, this can be risky, because if there is any dispute about whether your vicarious consent was in good faith or objectively reasonable, you may still end up having to defend against possible criminal charges or a civil lawsuit. The Wagner case I have cited, for example, was a civil lawsuit by a one parent against the other parent who had recorded telephone calls between the children and herself. The Court allowed that lawsuit to proceed because there was a genuine issue of material fact as to the motivations of the parent who had made the recordings. I don't recommend recording any such phone calls without first consulting a lawyer.
The generally accepted view of the courts is that children are to be kept out of the divorce as much as possible. Discussions of court proceedings with the children are discouraged and sometimes formally barred.

Having said that, children naturally wonder and ask questions to resolve their own anxiety at a time when their parents have split up, and their family unit and daily routines have dramatically changed. Simply proceed with sensitivity, and be careful not to place the children in the middle of any disputes. Say nothing that would burden them with any guilt, or put them in the position of having to take sides.

Discussing the divorce with your spouse and children together in a family therapy session is another reasonable option.
Emptying the joint bank checking or savings account in anticipation of divorce would ordinarily be frowned upon, unless you had a very justifiable reason. Be warned, however, that your spouse may beat you to it. I’ve seen joint bank accounts cleaned out by the other party many times, and many times there is unapproved spending by the other spouse as the divorce approaches. Although this can be accounted-for and compensated-for in the divorce property settlement, it can still cause great difficulty if you need the money during the pendency of the proceedings and have to litigate to get any of it back.

So what to do? All things being equal, I generally recommend taking half of the joint account money and depositing it into an individual account. If you trust your spouse enough to keep your accounts joint while the divorce proceeds, I respect that, but don’t say you weren’t warned.

On a related note, it is a useful precaution to close or otherwise terminate additional borrowing authority on any joint credit cards, lines of credit, or other joint debt accounts, when a divorce appears imminent. With respect to joint credit cards and other joint unsecured consumer lines of credit, Minnesota law requires the creditor to close the account upon the written request of either party. [1]
It can be difficult for a client to know whether his or her lawyer is performing well or not. Sometimes even the best of lawyers does not achieve the desired result, and it may be due to a difficult set of facts, a bad judge and/or custody evaluator or guardian ad litem, or unrealistic expectations. There are some clear indications of bad lawyering, however, which are objectively obvious:

1) Poor communication (lawyer doesn’t return phone calls or emails on a same day or at least 1-day turnaround without good reason, or doesn’t copy client on important correspondence, orders, pleadings, etc.).

2) Neglect (lawyer simply doesn’t work on case in a reasonably timely manner).

3) Lawyer misses important deadlines.

If any of the above is true, one should seriously consider obtaining new counsel.

Some considerations before firing your attorney, however, are:

1) Is the lawyer being paid? If there is plenty of unearned money in your trust account to pay for your lawyer’s pending workload, this shouldn’t be a factor. However, if the initial retainer has been used up, and an additional retainer has not been provided, or you have not promptly paid a bill from your attorney, this may be at the root of your lawyer’s lack of attention to your case.

2) Sometimes it is better to keep a lawyer, even with problems, if you are too close to a trial, hearing, or other event for the replacement lawyer to get up to speed in time.

When and if you do terminate your lawyer, you have the right to your file back in a timely manner. You cannot be billed for the copying of your file upon return unless the Fee Agreement so provides.
People starting a divorce process sometimes call me asking whether they should mediate their divorce, or litigate, as if this were an either-or proposition with irrevocable consequences.

In reality, every divorce requires both formal legal procedures as well as some kind of settlement negotiations. In Minnesota, even if you prefer to litigate and leave every decision up to the judge, the rules require that before the Court will decide your case, parties must attempt resolution through some form of Alternative Dispute Resolution, of which mediation is still the most common. [1]

Conversely, there is no way to finalize your divorce through mediation alone. Even if you reach a tentative agreement in mediation, this agreement must be formalized in a written stipulation, signed by both parties and their attorneys, and ultimately approved by the Court. [2] This signed stipulation — not your verbal agreements from mediation sessions — is what becomes the enforceable terms of your divorce, and should be prepared or at least reviewed and revised by your lawyer before you sign.

I generally do not recommend that people start out the divorce process in mediation, for a couple of reasons:
A mediator’s job is to get you to reach an agreement. Their sense of professional fulfillment is satisfied when an agreement is reached. Unfortunately, all too often, this can result in a person agreeing to things that are contrary to his or her interests, contrary to what the Court would order, and — in the worst case — contrary to the best interests of the children. Therefore, it is critically important to either have an attorney with you at the mediation session, or at least have one on retainer at the time, to consult before you agree to anything.
Often times mediation is an unnecessary expense. If each party has a good family law lawyer, issues can often be settled with no mediation at all, or with a simple four-way settlement conference between the lawyers and the parties.
A couple of other things to always be aware of with mediation:
Mediation is non-binding. This means that the mediator has no authority to force either party to agree to anything at all. Too often people come to me after the fact, complaining that the mediator forced them to agree to something. Just remember that no matter how much they may try to tell you that your position is unreasonable, or that the Court would never side with you, you do NOT need to agree to whatever it is they are pushing for.
Mediation is also confidential. Nothing said in mediation may be used against a person. Many times people tell me they agreed to something in mediation because they were afraid they might be seen as unreasonable. This should not be a concern in mediation, because of the confidentiality rule. (Outside of mediation, your lawyer can advise you as to what positions are reasonable or unreasonable).
Notwithstanding all of the above, mediation can often be the process that helps break an impasse and result in a reasonable settlement of one’s case. But for mediation to work, both parties must be prepared to compromise. If you approach mediation with the attitude that it will be an opportunity to convince the other party to do things your way, mediation will likely fail. That said, be careful not to concede too much. A lawyer can give you an appreciation of where the line is between generous cooperation and foolish capitulation.
Rule 114, Minnesota General Rules of Practice for the District Courts.
2. Minnesota Statute section 572.35 provides

Subdivision 1. General. The effect of a mediated settlement agreement shall be determined
under principles of law applicable to contract. A mediated settlement agreement is not binding
(1) it contains a provision stating that it is binding and a provision stating substantially that the parties were advised in writing that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) they should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights; or
(2) the parties were otherwise advised of the conditions in clause (1).”
The information in these pages pertains only to Minnesota law, and is not advice for your own case. Contact me for specific advice.
Clients often ask whether they should move out of the marital home prior to or during the commencement of divorce proceedings. The answer is very clear: “it depends”. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in the proceedings, I advise against it. Although no legal precedent is created by moving out, the lawyer for the remaining occupant routinely argues that:

“1. Custody should be awarded to my client because he or she is already living in the house which has been the children’s home, so for the sake of continuity and stability for the children, let’s leave well enough alone and not disrupt the situation with more moves.

2. Possession of the home should be awarded to my client because he or she is already living there, and the other spouse has already moved out, so why force them to move all over again?”

Such arguments are made both in support of temporary as well as permanent relief. Such arguments do not always carry the day, but it is often a consideration that influences judges, even if they deny it. If custody is in issue or you really want to keep the house, try to stay put until the temporary relief hearing, which is your first opportunity to legally compel the other party to move out.

If you do need to move out of the home immediately because it is an abusive or otherwise insufferable situation for yourself or the children, the following precautions should be considered:

1. If custody or parenting time is in issue, don’t move out without first getting an enforceable written stipulation addressing custody and parenting time after the move-out. The key is to have in place at least an interim parenting time schedule which affords you at least as much parenting time as you hope to obtain through the court. Otherwise, the longer you acquiesce to a pattern of parenting time that is less than you desire, the more of an argument the other party will make of it against you. Often arguments like the following are heard:

“Your Honor, the Petitioner moved out four months ago, and since then he has only had the children every other weekend, by his own acquiescence. Now all of a sudden he wants custody [or more parenting time, as the case may be]. This is clearly a disingenuous request which should be summarily denied. The schedule the parties have been following has worked well for the children, and for the sake of their sense of stability and continuity, it should continue.”

After the elapse of a period of time, nobody much cares if the reason you only had every other weekend was because the other parent truly wouldn’t “let” you have more time. Although that may very well be the case, and although you may have let your spouse control the situation in order to spare the children the trauma of parental conflict, in my experience the courts are more swayed by the pattern of contact rather than by these “excuses.” The wisdom of Solomon does not apply. [1]

2. Take with you all of the household goods and furnishings, and other items of personal property which you want to have, and inventory what you take. Although it is not a law, the old adage “possession is nine tenths of the law” is very applicable here. The reason boils down to the fact that litigating personal property issues is usually prohibitively expensive, because it normally costs more to litigate than the stuff is worth. So if you ever want to see it again, it is much simpler and easier to take it with you when you leave. [Caveat: don’t get too greedy. If you empty the place out and leave the spouse and children to sleep and eat on a bare concrete floor, you will not look good].
1. 1 Kings 3:16-28.
1. Don’t make your attorney justify every single decision, no matter how small. We’re happy to do it, but it takes time, and time costs you money. The point is not for you to acquire a law school education. The point is to represent your interests with excellence and efficiency. If you can’t take your lawyer’s word for something, it’s time to get a new lawyer. Otherwise, it’s much cheaper to give your lawyer a certain amount of “command authority,” at least on matters of procedure and tactics.

2. In divorces, there is inevitably a process of “discovery,” where each party requests information and documents from the other party. Sometimes this is informal and limited. Other times it is formal, comprehensive, and terribly time-consuming for the parties themselves (to gather the information), and for their lawyers (who must review the responses and put them together in proper legal form). Because most attorneys are sloppy and lazy with formal discovery, they request much more than is really necessary to settle a case, just to cover their butts and to avoid the work of tailoring the discovery demands to each particular case, or just to make the process more onerous for the other party.
When you have a choice, it is cheaper to cooperate with informal and limited discovery. In cases where the other party is not cooperative or not trustworthy, more formal discovery may be a necessity. Some of the formal discovery demands you receive will be objectionable. In most cases, however, it is much cheaper for you to just get the information and documents, than to pay your lawyer to argue with the other side about it. Also, don’t trickle it in piecemeal to your attorney if at all possible. Get it all together into one package, as complete and as organized as possible.

3. Be prompt. Courts are slow. Many attorneys, sadly, are chronic procrastinators and deadline-driven. Custody evaluators and Guardian ad Litems are slow. If you’re slow too, it compounds the problem. Furthermore, the quicker you can be in responding to whatever your attorney asks of you, the more likely it is that you’ll be able to settle your case sooner and at less expense. By acting quickly, attorneys are able to take charge of a divorce process, rather than being driven by court deadlines and various hearings and other requirements which might be avoided just by staying ahead of the game.

4. Use just one (1) attorney. Many people hire law firms to represent them, and end up in situations where more than one attorney is working on their case. This is inefficient, because each attorney involved needs to be independently educated about the case, and no attorney is as well informed as he would be if he were the only attorney on the case. I’ve seen billing statements from other firms with numerous charges for a “strategy conference” between attorneys in the same firm. I’ve seen billings for two attorneys from the same firm attending the same deposition. Obviously these duplicative charges don’t happen when you use a single attorney for your case.

5. Use an attorney who specializes exclusively in family law, so that you’re not paying so much for the attorney to “learn”. No lawyer has perfect and complete knowledge, but a specialist is not going to have to do nearly as much legal research as a more general practitioner. (Not to mention, a specialist will be more qualified to represent you in the best way possible, because of his experience).
The Social Early Neutral Evaluation, or “SENE”, was started in Hennepin County several years ago, and has since been adopted in Ramsey County, and increasingly in other counties in the State of Minnesota. It has become the norm in most contested custody and parenting time cases.

Essentially, a Social Early Neutral Evaluation is similar to mediation in that it is a form of alternative dispute resolution that is voluntary and non-binding. The difference is that with ordinary mediation, the mediator generally will not take a position. Whereas the evaluators presiding over an SENE are specifically tasked to give their recommendations, as a way to help the parties reach a settlement.

Typically the SENE will involve both parties, both attorneys, and two court-appointed custody evaluators. Usually three hours is blocked for a session. During the session, each party (and his or her attorney) is given the opportunity to explain what they would like for a custody and parenting time arrangement, and why. Questions from the evaluators are asked and answered. Then there is a break while the evaluators confer. Then the meeting reconvenes and recommendations are given and explained, whereupon the parties discuss settlement.

Generally, it is a very good program, resulting in settlement rates in excess of 50%.

The big warning I have is this: years ago, when the program started, the idea was that the evaluators would give their opinion of how they would likely decide the case in a full-blown custody evaluation, based on the facts learned in the SENE. This honest appraisal of how a months-long custody evaluation would likely turn out is what helped parties to settle their cases.

More recently, however, I have noted a shift to where, in my opinion, the evaluators make assessments of how the case will most likely settle, and tailor their recommendations to that assessment. This results in more settlements overall, but at the cost of many which are not in the best interests of the children. In light of this, it is very important not to give the impression that you are willing to settle for something that is contrary to the children’s best interests. In your pitch to the evaluators, tell them what you consider to be the arrangement that is in the children’s best interests, and why — not just what you would be willing to settle for; because if that’s your approach, that’s very likely what they'll treat as your starting point, and your children will be the ones to suffer for it, by having to live with an arrangement that is not in their best interests.

Also, always remember that the SENE process is non-binding. Don’t feel pressured into agreeing to an arrangement that you know to be contrary to the children’s best interests. The process is confidential, and your rejection of a the evaluators’ recommendations will not be known to the Court or to any future custody evaluator.
The date on which earnings (including retirement contributions and other income) becomes separate property again, is the so-called “valuation date.” [1] The valuation date is the date of the initially scheduled prehearing settlement conference, unless the parties agree to a different date, or the court finds that a different date is fair and equitable. [2] In my experience, the Court seldom exercises its discretion to use a different date. One situation warranting a different date is where the parties have been separated for years prior to commencement of the divorce, and have been living separately, with separate accounts, insurance, bills, etc., during the separation period.

In Hennepin County, the default valuation date is the date of the Initial Case Management Conference, which normally occurs within three weeks from filing of the divorce.

If you are concerned about ongoing earnings continuing to be marital in nature, then it is in your interest to lock in the default valuation date by filing the case as soon as possible and shepherding it along swiftly. For example, if you earn six figures, but your spouse is a stay-at-home unemployed parent, it is to your advantage to file the divorce first, and then work on settlement, rather than to mediate and negotiate for several months prior to filing.

Case in point: I had a client once who — contrary to my advice — chose to engage in settlement negotiations for several months prior to commencement and filing of the divorce, rather than filing first and then working on settlement. The pre-filing settlement negotiations did not bear fruit, and because of the delay, the valuation date did not occur until much later than it otherwise would have, with the result that a $180,000 dividend payment received by my client was treated as martial property, when it otherwise would not have been.

The same analysis applies to debts. Debts incurred prior to the valuation date are generally marital, regardless of who incurred them. Debts incurred after the valuation date are generally separate. If your spouse is charging up the credit cards like a drunken sailor, it is in your interest to expedite the divorce proceedings to lock in the default valuation date.
A common problem for many families is a dispute over where the minor child(ren) will attend school. If you have sole legal custody, you may decide this on your own. But if like most parents you have joint legal custody, then the choice of school is something that must be agreed upon, or otherwise submitted to the Court or Alternative Dispute Resolution for a determination.

In cases where the children are already attending a particular school, the likelihood is that they will continue to attend that school, unless one makes a compelling case that continued attendance at that school would be contrary to the children’s best interests for some reason.

In cases where the child is approaching the start of kindergarten, or will be transitioning to middle school, junior high, or high school, this can be a closer call. Obviously the quality of the school will matter. Fortunately school statistics are readily available, including standardized test scores. The Minnesota Department of Education provides School Report Cards on their website.

Other factors will vary in importance depending on the case, but can include the commuting time from each parent’s residence to the school, the child’s preference, the tuition cost (where private school is being considered), sports, and continuity of social relationships.

If you anticipate a dispute over the choice of school, it is best to contact a lawyer as soon as possible to plan how best to handle it. (So if school starts in September, call a lawyer in January if you know that early that there is going to be an issue).
In Minnesota divorce law, dogs, cats, and other pets are considered personal property. So if you owned a pet prior to the marriage, or acquired it during the marriage by gift or inheritance, or with non-marital money, then that pet is your non-marital property. Otherwise, it is marital property, and may be awarded to either party.

When deciding which party to award a marital pet, a compelling argument is the pet’s attachment to the children. If there are minor children involved, who are very attached to the pet, the Court will likely award the pet to whichever parent has primary residence of the children. Another compelling argument is which party cares most for the pet. If you can prove that you were the one primarily responsible for feeding the pet, taking it to the vet, walking it, etcetera, then you will be much more likely to be awarded the pet.

If you are not awarded the pet, you may still ask the Court for visitation rights. This is not common, but I’ve seen it granted.
Minnesota law is very clear on this point. If an engagement ring was given prior to the marriage, and a marriage subsequently took place, then the engagement ring is the non-marital property of the recipient, and the giver has no right to any of it’s value. [1]

This is in contrast to gifts of jewelry between spouses during the marriage, which remain marital property. [2]
Linderman v. Linderman, 364 N.W.2d 872, 877 (Minn.Ct.App. 1985) [engagement ring and wedding band are recipients’ pre-marital property].
2. Minnesota Statute section 518.003, Subdivision 3b(a).
For married parties with children born during the marriage, both parties have joint legal and physical custody until the Court orders otherwise. Thus, either parent has the right to take the children, and the other parent has the right to take them back, and so forth. This can lead to a lot of game-playing and tugs-o-war which are obviously harmful to the children.

The first opportunity for the Court to decide custody is normally at the temporary relief hearing. In Hennepin County, this can easily be four months or more from the date of filing. In other counties, it can be much speedier, as in Dakota or Scott County, where a temporary relief hearing date is normally available within about 3 weeks. Once the motions for temporary relief are heard, the Court has 90 days to rule, although they normally get temporary orders out within two to four weeks.

Prior to the temporary relief hearing, as indicated above, both parents have custody. One the one hand, it is a disadvantage to agree to a parenting time schedule — even on an interim basis — which is less than what you want on a permanent basis, because even though this is not legally relevant, I have seen judges swayed by arguments about who has had the children prior to the court appearance. On the other hand, children shouldn’t have to witness their parents fighting at the day care center doors about who gets to take them home. Sometimes the best approach is just to share the time 50-50 for the sake of compromise, until the matter is heard by the Court. If for the sake of the children you feel it is best not to fight about it, it is very important to send written notice to your spouse explaining your strong objection to the interim arrangement, e.g.:

“Dear Spouse: I very much regret that we have been unable to agree to a suitable interim parenting time schedule for the children pending the temporary relief hearing scheduled for xx/xx/xx. In order to spare the children the experience of our conflict over this issue, I will abide by the schedule you have unilaterally dictated while we await court action. Nevertheless, I want to make clear my strong objection to this interim schedule, which we both know is not in the children’s best interests.”

For unmarried parents, the mother has sole legal and physical custody unless and until the Court orders otherwise, pursuant to Minnesota Statute section 257.75, subdivision 3. Nevertheless, a mother should be careful before denying parenting time, because one of the many factors which the court considers in determining permanent custody is “the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.” Minn. Stat. § 518.17, Subd. 1(13).
A child support obligation terminates automatically when a child turns 18, or graduates from high school — whichever comes later, but in no case beyond the child’s 20th birthday. [1]. (A rare exception to this is in the case of a child who is incapable of supporting himself because of a physical or mental condition, in which case child support may continue throughout the child’s entire life).

It is important to remember that the child support obligation terminates automatically at this time. [2] The obligor doesn’t need to return to Court to stop it. He just needs to stop paying. That said, if payment is through automatic income withholding, it is a good idea to alert your child support case worker in advance of the termination date, to be sure they don’t overlook it and continue withholding the money from your paycheck.

Another rare exception to the general rule on termination of child support is in the case of emancipated children. An emancipated child is not entitled to child support. [3] Whether or not a child is “emancipated” is an issue that must be decided by the Court on a case by case basis, but will normally require proof that the child is living away from home and is self-supporting. Termination of child support by reason of emancipation requires a motion in Court.

Finally, parties may agree to continue child support past the statutory termination date. When this occurs, it is usually based on a mutual desire to support a child through college. Although the Court lacks jurisdiction to order child support beyond the statutory termination date, the Court does have jurisdiction to enforce a binding stipulation of the parties which provides for that. [4] If I am representing the obligor, I normally advise against this, because one can always support the children through college if one so desires. There’s no reason to get the Court involved.