No. Almost any Minnesota divorce case can be resolved through administrative Court review of the dissolution documents without Court appearances, except that a brief hearing is required when the parties have minor children and one of the parties is not represented by an attorney.
The key is that the parties find a way that works for them to reach an agreement on all divorce issues relevant to their situation. An informal agreement on these issues, allows one of the parties' attorneys to put those agreements into a legally binding contract (called a Stipulation or Marital Termination Agreement), which after approval and signature by the parties is submitted to the Court for approval. The Judge then signs a document (prepared by the lawyer) containing the parties' agreement in another form, called the Judgment and Decree. By this document the Judge orders what the parties have agreed upon and the divorce is accomplished.
The primary prerequisite to achieving such a settlement is: the parties must work together, relatively free of inappropriate emotional interaction, either one-on-one or with the help of a third-party mediator or by working with collaborative lawyers.
Assuming the parties can learn to communicate in a straight forward manner free of such emotional baggage, there are three common ways for the parties to work toward settlement of the divorce issues. They are:
a. Parties work directly with each other to agree on the specifics of their divorce.
Each of the parties should first review the divorce issues, and meet with a collaborative lawyer to familiarize himself/herself with the implications and application of the issues to his/her situation. The lawyers can also serve as informal coaches to the individual parties during the process. The parties should gather all the information about their financial situation, such as pay stubs, income tax returns for the last 2 years, recent bank statements, retirement or investment account statements. etc. The parties are then ready to sit down together to discuss the issues. I recommend that they meet in a "neutral" public place such as a Perkins or Denny's . Meetings should not last more than 2 hours per session and should break up sooner if the discussion becomes emotionally unproductive. When agreement is reached by the parties, the lawyers convert the parties' agreement to legal documents and process them through the Court as described in FAQ 2 above.
b. The parties work with a mediator--who is a neutral third party familiar with divorce issues and skilled in conflict resolution.
There are a number of highly skilled family law mediators who will work with both parties to help them achieve agreement on all their divorce issues. I will be happy to furnish sample names and addresses upon request. Before seeking out a mediator, each of the parties should first review the divorce issues, and meet with a collaborative lawyer to familiarize himself/herself with the implications and application of the issues to his/her situation. Most mediators will provide a free orientation session, if both parties are present. Mediators first help the couple deal with the temporary issues that need to be dealt with to stabilize the living situation before moving on to the final issues. Again, the financial information needs to be gathered and gone over in mediation. The mediator's job is to facilitate the parties reaching agreement. The parties' lawyers are usually not present at the mediation sessions. Since the mediator is not permitted to give legal advice, both parties should have a professional relationship with a collaborative lawyer to advise and coach them during the mediation process. The lawyer will also review, on behalf of his/her client the memorandum prepared by the mediator setting forth the agreements reached in mediation. When the parties are satisfied with their mediated agreement, the lawyers convert the parties' agreement to legal documents and process them through the Court as described in FAQ 2 above.
c. Each party retains a collaborative lawyer to represent him/her; the parties and their lawyers then meet to resolve the issues.
Here the parties and their respective lawyers meet in 4-way conferences to resolve the issues. See collaborative lawyer for a detailed description of collaborative law.
Since collaborative lawyer agree with their clients that they will not go to court in an adversarial proceedings, retaining collaborative lawyers helps keep the settlement process working in out-of-court settings.
No. In the State of Minnesota, the State Board of Professional Responsibility has declare such a practice to be unethical, due to the conflict of interests in that each party has separate interests from the other which cannot be represented by one lawyer.
The following is a listing of those issues that will need to be considered by the parties if they have any minor children. If the parties have no minor children then issues a, b, d(1) and h(1) will not need to be considered:
(The following summary of divorce issues is intended to be a general overview of the application of Minnesota law on these issues. It is not intended, nor should it be construed, as giving legal advice on any such issues. You should always consult with an attorney with respect to the application of the law in Minnesota to your specific circumstances.)
a. Child Sharing Arrangement
There are two types of custody of children in Minnesota, Legal Custody and Physical Custody. In either type of custody arrangement the parties can share custody, called joint custody, or one of the parties can have custody, called sole custody. Thus there can be sole legal custody or sole physical custody with one of the parents having custody alone, or there can be joint legal custody or joint physical custody, where in either case the parties share custody and its rights and obligations.
* Legal Custody. The party or parties having legal custody retain the full rights and obligations of a parent, with input into majoring parenting decisions (medical, educational and religious upbringing) and access to all medical and educational records for the child and the right to attend school conferences. If there is joint legal custody, the parties have equal say in making major decisions around the child regarding medical, educational and religious issues, as well as equal access to records and conferences.
The law in Minnesota presumes that is in the best interest of the children that the parents have joint legal custody, unless a strong showing can be made why it is not in the children's best interests. The factors so considered are:
(1) the ability of the parents to cooperate in raising the children;
(2) parties have methods for resolving disputes and are willing to use them;
(3) whether it would be detrimental to have one parent have sole authority over child's upbringing; and
(4) whether domestic abuse has occurred between the parents.
* Physical Custody. The party or parties who have physical custody have the day to day care of the child while the child is in that parties' physical care. In the case of sole physical custody, the child's primary residence is with the party having sole physical custody and that parent makes the day-to-day decisions as to what is in the best interest of the child. The party without physical custody has "visitation" with the child either "reasonable" visitation, which is not spelled out in detail in the Decree or according to a schedule specifically agreed to in advance between the parties and spelled out in the Decree.
In the case of Joint Physical Custody, each of the parties has custody of the child for designated periods of time, approaching a 50-50 arrangement. When the child is with one or the other of the joint custodial parents, that parent has the responsibility for making the day-to-day decisions with respect to that child.
Traditionally, when the parties are able to work out their child-sharing arrangement outside of Court, the parties also spell out a vacation schedule--on which specific holidays in which years will each party have the child with him or her. Often they will alternate ever other years in having the children on designated holidays.
Similarly, the parties also spell out expectations of how much time each parent will have for vacation with the child (and sometimes, also, without the child).
b. Child Support.
1. One party has sole physical custody.
In Minnesota, the noncustodial parent pays child support , normally, in an amount reflected in the child support guidelines set forth in the Minnesota Statutes. The child support is based on a percentage of net income based on two variables: (1) the noncustodial parent's "net income" per month; and (2) the number of minor children of the marriage. The resulting percentage from the chart is the percent of the parties' first $6,280 of net monthly income that will be paid to the custodial parent as child support. "Net income" for the purpose of determining child support using the guidelines is defined as: net monthly income, less
* Federal income tax withholding
*State Income tax withholding
* Social Security Deductions (FICA & MediCare)
* Union Dues
* Cost of Dependent Health Ins. Coverage
* Cost of Individual Health Ins. Coverage of Payor; or Amount of Actual Medical Expenses of Payor
* Child Support or Maintenance Order currently being paid.
The Standard Deductions applicable to the payor are to be used in determining withheld taxes and the use of tax tables is recommended by the statute.
Net income does not include a new spouse's income, but does include "in-kind" payments from work if they reduce the parties' living expenses.
| Net Income Per Month | Number of Children of Obligor | ||||||||||||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 or more | |||||||
| $550 and Below | Order based on the ability of the obligor to provide support at these income levels, or at higher levels, if the obligor has the earning ability. | ||||||||||||
| $551-600 | 16% | 19% | 22% | 25% | 28% | 30% | 32% | ||||||
| $601-650 | 17% | 21% | 24% | 27% | 29% | 32% | 34% | ||||||
| $651-700 | 18% | 22% | 25% | 28% | 31% | 34% | 36% | ||||||
| $701-750 | 19% | 23% | 27% | 30% | 33% | 36% | 38% | ||||||
| $751-800 | 20% | 24% | 28% | 31% | 35% | 38% | 40% | ||||||
| $801-850 | 21% | 25% | 29% | 33% | 36% | 40% | 42% | ||||||
| $851-900 | 22% | 27% | 31% | 34% | 38% | 41% | 44% | ||||||
| $901-950 | 23% | 28% | 32% | 36% | 40% | 43% | 46% | ||||||
| $951-1000 | 24% | 29% | 34% | 38% | 41% | 45% | 48% | ||||||
| $1001-5000 | 25% | 30% | 35% | 39% | 43% | 47% | 50% | ||||||
The law in Minnesota provides for a sharing of day care costs in proportion to each of the parties' net incomes, unless another agreement is reached by the parties. The resulting payment is adjusted to take into account the day-care credit for tax purposes received by the custodial spouse.
2. Parties have Joint Physical Custody.
When the parties have joint physical custody of the child or children in Minnesota, the guidelines cannot be directly applied to one party, since both parties have physical custody for a portion of the time. The usual way in which this is handled is to apply the guideline to each of the parties. So parent A would pay parent B guideline support based on A's net income and B's time with the child and B would pay A guideline support based on B's net income and A's time with the child. This is referred to as the Valento formula.
Child support for a child terminates when that child reaches the age of 18. However, if the child is still attending high school, support will continue until the child graduates, but no later than the child reaching age 20. Support ends sooner if the child marries, is in the military service or is "emancipated" (living independently and self-supporting.)
Child support and spousal maintenance payments are automatically deducted from the payor's check from his/her employment and paid through the County. While the parties can waive this requirement, the party receiving the support can have withholding instated at any time upon request.
Child support is subject to a bi-annual cost-of-living increase, upon application by the spouse receiving support based on the percent increase in the Consumer Price Index over that two-year period. The payor's only defense is that he/she has not received an increase in pay equal to the increase in the Consumer Price Index during the applicable time period.
c. Spousal Maintenance
Spousal maintenance (formerly called alimony) is periodic payment made by one spouse to the other for support of the latter spouse. The initial test for whether a spouse may be eligible for spousal maintenance is whether that spouse has enough income from his/her work and income from assets to meet his/her expenses, taking into account the standard of living of the marriage. If he or she has such income--there is no eligibility for maintenance. If he/she does not, then the spouse may be eligible for spousal maintenance depending on , among other things, the other spouse's ability to pay. and the length of the marriage. Spousal maintenance in applicable cases can be short term or even permanent. However, spousal maintenance ends on remarriage of the spouse receiving it. Spousal maintenance is income for tax purposes to the party receiving it and deductible by the spouse paying it.
Both or either of the parties may waive maintenance, in which case no maintenance is awarded and can not be claimed in the future.
In lieu of an award of maintenance, maintenance can be reserved, which means there is no award at the present time, but may be sought at some time in the future as limited or conditioned by the parties' agreements. Spousal maintenance is also subject to automatic wage withholding and Cost-Of-Living increases as discussed under "Child Support" . The Cost-of-Living increase requirement in the case of Spousal maintenance can be waived if the parties agree.
The amount of child support and/or spousal maintenance and the duration of spousal maintenance may be modified in the future based on the test of whether that has been such a change of circumstances--either positive or negative-- of the parties to make the original support order unreasonable or unfair. Modification is not automatic with any change, but requires an overall change of circumstances of 20% or more before the courts will consider a modification. Any changes, of course, would need to be involuntary. I couldn't quit my job to avoid support payments, for example.
d. Health Care
(1) Children: The Courts require that health insurance coverage be provided for the minor children. Initially the parties may decide who will carry the policy, how it will be paid for, and how medical and dental expenses not covered by insurance will be paid by the parties. If the parties can't agree the law provides that the party having group insurance, e.g., through work, is to carry the insurance coverage for the children. If both parties have such insurance, then the policy with the best coverage is chosen. The cost would be paid by the party who has the insurance (unless the parties agree otherwise). In general, the parties (without different agreement) are to share the medical and dental costs for the children not covered by insurance based on their proportionate share of their total net income (see net income definition under Child Support above.)
(2) Spouse: If one spouse has group health insurance through work and the other spouse does not, the former's employer can be required to provide group coverage for the uncovered spouse following the divorce, if the Decree so states. This requirement is under both state law and Federal (COBRA) law. The company can charge a premium for the coverage not in excess of 3% more than what the Company charges a single employee for the coverage.
The coverage under COBRA is for 3 years. Under State law, if applicable, it would be longer, unless the recipient remarries. Which party pays the premium for the coverage is not specified by law and should be negotiated by the parties.
e. Life Insurance
* If the party paying child support and/or spousal maintenance has available life insurance on his/her life, or it can be obtained by him/her, then a negotiated amount of insurance is usually agreed to be carried to secure the unpaid child support and/or spousal maintenance payments in the event of his/her death. The beneficiary can be the children, the ex-spouse or a trustee for the benefit of the children and/or spouse. You will need professional assistance in setting up trust in your will if that is your preference.
f. Property Issues
All the tangible real and personal property (including retirement and pension accounts) which are accumulated during the marriage from the income of either party, is considered marital property . The general rule in Minnesota is that such property is to be divided equally, (although Minnesota is not a Community property state).
What is not normally divided is the category of nonmarital property, which consists of:
a) property which either party brought to the marriage which is still identifiable or directly traceable into another asset;
b) property acquired as a gift or inheritance to one spouse and not the other, either before or during the marriage, which is still identifiable or directly traceable into another asset;
c) the increase in value of any item in a) or b) above. Nonmarital property normally is retained by the party owning it and is not normally divided with the other party.
The parties must disclose to each other, and set forth in their dissolution documents, each item of property (exclusive of household goods) and its value as agreed between the parties. Where the parties cannot reach agreement on the value, a neutral appraiser should be retained to assist the parties in arriving at a value for the property. Pension and profit-sharing accounts and 401(k) plans can be divided without the transfer being taxed, by preparing certain documents which meet IRS standards and which are approved by the Administrator of the Plan.
After the property has been identified and a value placed on each major item, the parties divide the items or portions of investment items between them using a balance sheet to calculate what if any adjustments have to be made for equality after the initial division. For example, if the total of Wife's column ended up to be $20,000 and Husband's total was $15,000, one-half of the difference, or $2,500, would be the equalizer. The amount required to equalize can be done by switching an asset between the columns or, as in the example, the Wife agreeing to pay Husband $2,500 in cash by a certain time. (Any time payment would require a lien on an asset of the Wife to give Husband security for the debt.)
An oversimplified balance sheet would look like this:
ASSET HUSBAND WIFE '94 Chev. 9,800 '89 Buick 7,000 H.'s 401(k) 8,000 W's 401(k) 10,200 Totals $15,000 $20,200 Equalizer + 2,500 - 2,500 Final Balance $17,500 $17,500 g. Attorneys fees .
The parties can decide how their respective attorneys fees will be paid. Some parties agree to pay from joint assets all such fees related to settlement, drafting of agreements and finalization of the divorce. Others agree that each will pay their own. One party generally has more fees because economy calls for only one of the attorneys drafting the papers and the other attorney reviewing them for the other party. Sometimes some adjustment is made for this inequality in fees. If the matter is disputed and goes to Court, the Court has discretion to order that one of the parties pay all or a portion of the other's fees.
h. Tax Issues.
The parties can decide between them how the tax exemptions for the child or children will be a divided or allocated between them. If no agreement is reached, the IRS says the party with sole physical custody gets the exemptions. The parties can agree to alternate the exemption for a child each year. Or, if there are, e.g., two children, the parties can each claim one of the children for tax exemptions and agree to alternate when only one of the children is eligible for exemptions in some later years. Head of household status would be available for a party who had a child living with him/her for more than 50 percent of the time in a given year.
If the parties are contemplating a divorce before the prior year's taxes are filed, they can decide whether to file their tax returns for the prior year jointly or singly. If filing jointly, the parties need to decide how any additional tax liabilities or tax refunds for that year, and the cost of preparing the tax returns, will be apportioned.
i. Property Settlement.
This category refers to any payment a party is to make to the other to equalize the property settlement. If the payment is to be made over time, the issue of whether there is interest on the debt or not needs to be decided, and some lien or other security needs to be provided to the party who is owed the settlement as security for payment.
j. Debts.
The unpaid debts of the parties need to be determined and listed as part of the property settlement. Debts secured by an asset usually go with the asset. That is, if the Husband gets the 1997 Honda Accord, which has a loan against it, he also takes the loan. Unsecured debts, like credit card debts, assumed by one of the parties, goes on the asset balance sheet as a subtraction in that parties' column.
Debts are generally considered joint debts, just like assets, and are joint debts no matter whose name they are in, unless the debt is specifically related to one party. For example, student loans of one party are often considered that person's debt without being subtracted from the asset balance sheet. k. Name Change. Either party can obtain a change of his/her name in connection with the dissolution proceeding.
-- Stuart G. Webb, Esq.