Category Archives: St. Paul Divorce Lawyer

Pitfalls In Handling Your Own Divorce

I have seen an increase in people trying to draft their own Divorce Judgment and Decree, which often leads to numerous problems and additional fees and expense to redraft the Decree or for the need to move to amend it because of ambiguities. Some terms or omissions can be impossible to correct afterwards.

If you have children, real estate, assets in excess of $20,000, pensions or issues relating to custody, parenting time, spousal maintenance or child support it is best to retain an experienced family law attorney to draft the final paperwork.

I have represented numerous clients when their paperwork has been rejected by the trial court or worse has been accepted, but has failed to properly address all issues or foreseeable issues. Family law is complicated and has extensive statutes and common law set forth in a large scope of cases that a layman will not understand or properly address. Neither the court or the clerk’s office can or will give legal advice.

Once the Decree is accepted and filed many of the terms are not modifiable at a later time. Property settlements become final. Other terms may be modifiable if there is a substantial change in circumstances, but still may be difficult and expensive to attempt to modify.

There are numerous nuances in drafting custody and parenting plans that would benefit the input of an experienced divorce attorney. These agreements are generally not easy to change or modify. Vague or incomplete parenting plans often leads to numerous disputes and issues that can cause the noncustodial parent to lose important parenting time when a dispute arises.

Determining child support under the calculator is not as easy as it seems as there are numerous collateral issues that may not be properly addressed such as imputing income for less than full-time employment, bonus income, or issues and complexities when dealing with self employment, or overtime income. There are also numerous complexities in determining what the actual percentage of parenting time is for each parent is under parenting time schedules. A lawyer can also make sure the issue of the child dependency tax exemptions are properly addressed and drafted in the decree as well as other matters such as security in life insurance is included to make sure there is adequate support in the event of a death.

Spousal maintenance terms have to be dealt with extremely carefully or unintended results can easily happen. If proper waivers are not included with specialized language a party may leave itself open for extended or continuing spousal maintenance or attempted motions to do so. A lawyer should be used in every case dealing with spousal maintenance cases.

If you own a home it is also important to have a lawyer’s assistance. It is essential to make sure the complete legal description is included or you can have expensive future title problems. An agreement to sell the home needs critical detailed information included to properly address possible unforeseen issues such as difficulties in facilitating the sale or default or possible short sale ramifications and other issues, including possession, payment requirements and cooperation terms.

Dividing retirement assets and pensions have many complex issues that can lead to serious unintended consequences if not properly addressed. Survival benefits, valuation and tax issues and other complexities needs the input and advice of an experienced attorney. Often a separate Order (QDRO) needs to be prepared with numerous electives and options that can involve tens of thousands of dollars in differences depending on the electives selected, or more, if there are errors made that generally may not be later modifiable.

Generally when a divorce starts many people are on an emotional roller coaster and often have some temporary depression issues. Many people have feelings of guilt or remorse or even anger and cannot properly evaluate what is fair and equitable or consistent with the law. They may overlook important issues or make unwise concessions that may haunt them for years as they try dig out of a deep financial hole or give up custody or parenting time they cannot later change.  They may find they are entitled to much more than they are aware of if they overlook nonmarital assets or other spousal maintenance issues. A good family law attorney will protect you from making a poor decision without careful thought and evaluation.

The family law rules and rules of civil procedure are very complex and you will be expected to follow them. If you miss deadlines you may lose or waive important rights to make submissions or argue issues.

Do not assume you can easily represent yourself in a divorce and navigate drafting a divorce decree that properly protects you. Retaining an experienced divorce attorney is a wise and prudent investment to make sure all issues are fully evaluated and addressed and your rights are protected.  I have been a lawyer for over 33 years and practice exclusively in family law, custody, divorce and mediation. I will make sure your rights are protected.

Resolving Parenting Disputes With A Parenting Consultant

Many Family Law Lawyers and some Judges are now encouraging parties to stipulate and agree to use a Parenting Consultant to resolve parenting time disputes in divorces, post dissolution issues, parenting time scheduling issues for holidays and vacations as well as to settle joint legal custody issues such as schooling disputes, extra curricular activities, church disputes, transportation and other children’s issues. Generally Parenting Consultants are precluded from modifying actual legal and physical custody designations but their decisions can effectively make major changes that, in effect, come to close to doing so.

Generally Parenting Consultant’s are experienced family law lawyers with some additional training or experienced psychologists, counselors, or other mental health professionals. The powers of a Parenting Consultant are generally defined by contract and stipulated powers set forth in the Decree or separate Court Order. Their powers are not defined by statute or law. There have been efforts to introduce and pass laws and statutes to clarify their roles and powers, but to date a statute has not been passed. It is important to carefully review the Consultant’s Contract and any Proposed Order appointing a Parenting Consultant as you are actually, in effect, giving this individual the powers of a judge to promptly settle and order an outcome on issues presented to the Parenting Consultant concerning your children if they fall within the scope of the powers designated in the Order or contract that has been signed.

I have served as a Parenting Consultant and been involved with many Parenting Consultants in my cases. They can be very helpful, but can also create another layer of expense if the Parenting Consultant appointed is not experienced or fails to promptly make clear complete unequivocal decisions that are fair, impartial and based on the best interests of the children. They are designed to save attorney fees and court expenses by allowing an expedited resolution of parenting time issues. It allows parties to minimize attorney fees by not requiring the formal preparation of motions, affidavits and memorandums of law by your lawyer and paying the court filing fees and requiring a court hearing that may take months and instead allow parties to submit emails and letters addressing disputes involving the children that in theory can be quickly ruled upon by the Parenting Consultant.

Generally the form Orders and Contracts of Parenting Consultants provide their decisions are subject to review by promptly filing a motion with the trial court within the time period set forth in the Order. Courts and Judges love to appoint Parenting Consultants as it can in many cases cut down on the family law motions filed with court and clear the court’s calendar to address its other pressing assigned cases.

It is critical to discuss with your lawyer all ramifications of stipulating and agreeing to a Parenting Consultant before doing so. There are some Parenting Consultants who like any other profession are not the best in promptly and properly determining parenting issues. Their experience and skills vary greatly. Choose the Parenting Consultant with great care. Once appointed it can be very difficult to have one removed and it will be impossible to by-pass the Parenting Consultant unless the Consultant resigns or you obtain an Order removing the Consultant.

It is critical the Consultant lay out clear ground rules for submissions so people are not overwhelmed with lengthy last minute submissions. There are no rules or procedures in the law addressing how or the timing of submissions for Parenting Consultants. If you have a controlling or difficult ex spouse or opposing parent it can lead to more disputes and expense as it can encourage parents to raise every minor or trivial parenting issue with the Consultant as it is as easy as sending an email without the expense of scheduling and preparing a motion or affidavit for a court hearing. Sometimes parents do not as easily compromise because they can simply have  the Consultant rule on it. Sometimes Parenting Consultants fail to make clear comprehensive rulings addressing all issues as they receive numerous length emails raising many issues and counter issues and sometimes they are reluctant to reconsider or expand the scope of their decisions.

It is true that you generally have the right to appeal or seek to challenge a Parenting Consultant’s decisions in court, but many judges will give the Parenting Consultant’s decision deference although they may not be required to do so. Appealing the decision can be expensive and you have doubled the fees and expense as you have also paid the Consultant substantial fees to review and rule on the issue previously. In many cases I have observed the fees paid to a Parenting Consultant can be very substantial as it can lead to voluminous emails and multiple submissions and frequent involvement with the Consultant if a parent is controlling and difficult and has the financial means to do so.

It is important you have a family law attorney to discuss and help you through the process and decisions involving Parenting Consultants. Unless you appoint an experienced competent Parenting Consultant who carefully details the procedures and have an Order defining the scope and authority of the Consultant there can be many unexpected pitfalls and fees as well as other difficulties that you may be bound to follow that may end up being more expensive than other alternatives.

Lack Of Employment Increases Probability of Divorce

In Fusion on August 1, 2016 Author, Taryn Hillin, noted that an extensive Harvard Study confirms that men who are not able to find employment or play the role of “breadwinner” are more likely to get divorced. It is noted that gender expectations on men and women influences relationships.

There are many issues that impact the stability of relationships and marriages. But a man’s failure to financially contribute or substantially assist with economic necessities of marital expenses has now taken a larger influence on the issues leading to divorce or relationship instability.

It appears obvious financial distress, lack of employment, or inability to pay marital expenses will cause stress and resentment in a spouse. With the slow growth of our economy and the increasing costs of housing, food, and healthcare it appears critical for men to substantially contribute to the financial obligations in the marriage.

If parties find themselves unable to overcome their financial difficulties or marital unhappiness through marital counseling or other religious or family support it is wise to consult with an experienced divorce lawyer or family law attorney before taking any rash action.

Divorce Can Have Some Positive Benefits For Children

I have seen many ugly divorces and custody battles. It is without doubt an ugly divorce where children are used as pawns or placed in the middle of conflict will cause serious emotional harm to children. It has been a pleasant change that the procedures and family law rules have now been changed to encourage amicable resolution of custody disputes without ugly litigation through Mediation or Social Early Neutral Evaluation and to minimize Temporary Hearings until amicable Alternative Dispute Resolution is attempted.

Some experts are also now confirming that divorce can have some positive benefits to children.  Jackie Middleton has stated in Canadian Living that many divorce children can experience these five benefits:

1. Divorced children often learn to be Resilient and Adaptable.

2. Divorced Children often learn to be more Self-Sufficient.

3. Divorced Children often have an increased sense of Empathy towards others.

4. Divorced Children will often not take their own marriage for granted.

5. Divorced Children often learn more about each parent based on the quality time they spend alone with each parent individually rather than in a family setting.

There is far from consensus opinion on how divorces affect children. But based on my observations and experience it is very important to keep the children out of the conflict. Children do far better when they have both parents in their lives and are not subject to a parent constantly bad-mouthing the other.

Your children will be much better off, as will you, if you find a way to settle your Parenting Disputes and avoid Custody Litigation and a Custody Trial. Sometimes this is not possible, but do your children a favor and do your best to keep them out of the conflict.

A good divorce lawyer can litigate when necessary, but also can guide you through more amicable options and procedures that can lead to an amicable settlement. It is critical to promptly retain an experienced divorce attorney at the beginning of any divorce or custody dispute.

 

 

 

Significant Other’s Can Impact Custody Decisions

In an unpublished opinion in Newman vs. Newman, A15-0561 (Minn.Ct. App. Dec.21, 2015) the court of appeals reviewed an appeal from a divorce involving a 16 year marriage involving three minor children with a mother who had been a full-time homemaker since 2003 and a father who recently retired early. The trial court granted joint legal custody, but granted the father sole physical custody.

Mother appealed and claimed the trial court erred in not granting her joint physical custody or sole physical custody.  The appellate court noted there had been acrimony and a lot of personal attacks in the case and that a current harassment restraining order precluded father from harassing the mother. It was noted this conflict did not support their ability to cooperate under a joint physical custody arrangement.

The court also found that although there was not evidence of domestic abuse, the court had deep concern about the safety of the parties’ daughters around the mother’s live in boyfriend who had been convicted of felony invasion of privacy of a minor for hiding a video camera in his 17 year-old, step-daughter’s bathroom. It was specifically ordered the mother’s parenting time not include her boyfriend and that the mother’s boyfriend directing impacted the physical and emotional safety of the children.

In addressing the best interest factors the court noted nine were neutral, one inapplicable, two favored the father and one favored the mother. The deciding factor was the interaction and interrelationship of a person who may significantly affect the children’s best interests.  In this case the mother’s decision to live with a convicted felon who had harmed his step-daughter lead to her losing physical custody.

If custody is an issue in a divorce or paternity action it is crucial to immediately consult with an experienced divorce lawyer or knowledgeable family law attorney. Decisions about living arrangements, significant others, and high conflict disputes with your spouse can preclude sharing joint physical custody or even lead to a longtime homemaker to lose physical custody.

 

 

 

Moving On After A Marriage Ends

Clinical Psychologist, Kristin Davis, has recently published a thoughtful article in the Huffington Divorce section on February 1, 2016 suggesting 5 ways to move on after a relationship ends, which is sound advice to consider after a divorce. I concur and believe the tips can help an individual transition and overcome the emotional and psychological pain that divorce often brings. These are the recommendations:

1. TAKE STOCK. As painful as it might be it is helpful to think through your take and what you learned from that relationship. Would you do things differently the next time? What struggles on both sides may have contributed to the marriage ending? Many people just want to run away and hide or escape another way through other means such as alcohol, dating, or other destructive behavior and this will only lead to more problems and potential heartaches.  Instead analyze , where do I see myself? What have I learned? What , if anything would you do differently in the next relationship? How is it best for you to move on? Some may realize there are positive things and aspects of the break-up such as freedom, optimism, empowerment and relief. Remember this is an opportunity for a fresh start and to recreate yourself and pursue dreams or things that may never have been realistic or available when married.

2. PURGE SOCIAL MEDIA. Make sure you remove your former spouse off your social media. Delete and remove picture, emails, and texts. Do not follow him or her on Twitter, Facebook or Instagram. If you fail to do so you will be confronted with continuing painful reminders and will lead to you being stuck in the past and not focusing on the future.

3. INDULGE AND EXPAND HORIZONS. Reconnect with family and old friends. Expand your knowledge, take a class and read some interesting books or take up a new hobby. Exercise can often help with overcoming emotional pain. Be open to things, experiences or old hobbies. Explore things you have never done.

4. DO NOT RUSH INTO A NEW RELATIONSHIP. Many professionals believe rushing into dating is not the best way to move past your last relationship. It is often wise and better to give yourself some time and space before you rush back into another relationship. Give yourself time to spend on yourself to step back, evaluate and provide an opportunity for clarity and introspection. People often fail to analyze the mistakes of the past and end up repeating things that lead to future failed relationships. Look for patterns that can help prevent future relationships mistakes.

5. ACCEPT CHANGE AND UPHEAVAL. It often is not easy to get over a divorce or the end of a relationship, but do not dwell on the past every minute of the day. Over time you will heal and the ride will become less bumpy. Your new freedom can lead to many new adventures and you have an opportunity for a new beginning. Never give up. There will be future opportunities for love and fulfillment.

I am not a mental health expert or psychologist but as a divorce lawyer with several decades of experience and after representing a few individuals in multiple divorces and experiencing and witnessing the struggles some clients have I believe these recommendations are extremely helpful to prepare for your exciting future.

Court Reverses Trial Court Permanent Spousal Maintenance Award And Directs Rehabilitative Maintenance and Also Directs Smaller Monthly Sum

In Spolum v. D’Amato, A14-1335, A14-1720 (Minn. App. August 17, 2015)  the Court of Appeals reversed a Ramsey County  trial court decision awarding Permanent Spousal Maintenance and remanded to the trial court to recalculate Spolum’s  monthly expenses, D’Amato’s income, and to reduce the monthly maintenance award of $14,072 and further held only Rehabilitative Spousal Maintenance was appropriate.

D’Amato, an orthopedic surgeon, and Spolum, a flight attendant, were married in 2001 and had one son, born in 2003. The parties separated in July 2010.  A legal separation action was started and then the parties attempted reconciliation but continued to live separately. A divorce trial began in August 2013. At that time, Spolum was age 49 and D’Amato was age 45.

To plan for the wedding, Spolum took a leave of absence as a flight attendant and extended it after the 911 attack and returned to work 5 years later. She quit in 2006 because her commute was stressful. She is high school educated with some college and art school classes.

Spolum worked at a clothing boutique and as a yoga instructor. When the parties reconciled she opened a chocolate shop, but the business failed. Trial evidence reflected she was “brilliant and creative”.  She was interested in animal-welfare and was on the board of directors for an animal-welfare organization. Spolum desired to establish a career as an animal welfare advocate. A vocational rehabilitation evaluation was completed concluding without additional training she could work in a position earning between $10-$12 an hour, but could attend a two year vocational program.

During the marriage D’Amato was let go in a physician practice. He applied to Health Partners. He was initially rejected, but Spolum testified she invited the head of HealthPartners to their home to advocate for reconsideration and D’Amato was then hired.  D’Amato also began a second job as an independent medical-legal consultant, working approximately 20 hours a week. Near the end of 2011 D’Amato quit the second job as it was time-consuming and stressful causing him anxiety and to be unhealthy. He testified he was already working 50 hours a week at HealthPartners.

D’Amato testified his earning in 2013 would be $800,000 and that he was seeing fewer patients as they were being diverted to other doctors. The Director of HealthPartners testified there has been a decrease in patient volume and surgeries. D’Amato’s income has been decreasing since 2011 and he predicted this trend would continue. He could earn additional income based on his production, but patients were decreasing. D’Amato testified he projected his salary in 2014 to be $750,000. D’Amato proposed the court use his 2013 income of $800,000 and that he pay spousal maintenance for 4 years to allow Spolum to acquire employment and training.

In the Judgment the trial court set D’Amato’s income at $950,538 using a 3 year average and despite finding he had quit his second job to create a more balanced life. The  judge stated that in the event the court overestimated his income D’Amato was in a better position to correct the error by pursuing additional options.

The trial court found Spolum’s discretionary spending at $9,943 per month and then modified that to $8,383 based on D’Amato’s claim this was even higher than she requested. In the original decision the court ordered $18,225 per month in spousal maintenance which was subsequently amended to $14,072 after post-trial motions. Apparently the trial court made findings concerning Spolum’s earning capacity and ability to re-enter the job market, but ignored those facts in making it a permanent maintenance award. The court found she was in good physical and emotional health and found no reason why she could not pursue a successful career because she was healthy, intelligent, articulate, creative, and capable.

The court found permanent spousal maintenance was appropriate based on: (1) the high marital standard of living, (2) the length of the marriage, (3) Spolum will never be able to support herself in the manner close to the marital standard of living, and (4) the fact D’Amato’s income would not decrease. Spolum was awarded $1.2 million dollars in assets, including the Caribbean home “Seacliff” which D’Amato requested be sold and artwork of $110,000, but found the assets were not available until retirement.

The court of appeals reversed the amount and duration of the award and stated Permanent Spousal Maintenance was not warranted and that the award should be Rehabilitative. The court explained a court may award spousal maintenance (1) if a spouse lacks sufficient property, including allocated property to provide for reasonable needs considering the standard of living, or (2) is unable to provide self-support through appropriate employment, in light of the standard of living. Minn Stat. 518.552, subd.1.  In determining an award the court should evaluate (1) the financial resources of the requesting party, including marital property awarded to the party, and the party’s ability to meet needs independently, (2) time necessary to become self-supporting, (3) marital standard of living, (4) duration of marriage, (5) loss of employment benefits and opportunities foregone by requesting party, (6) age, physical condition, and emotional condition of the requesting party, (7) ability of the obligor to meet the needs of both parties, and (8) contribution of each party in the acquisition, preservation, and depreciation of marital property. Minn. Stat. 518.552, subd. 2.

The court stated the trial court put an overriding emphasis on the standard of living, which was merely one factor to be considered. The court did not agree the assets awarded to Spolum were not available until retirement. The court held the evidence and findings support an award of rehabilitative maintenance, not permanent spousal maintenance. The court noted the standard of living was over emphasized because Spolum also testified the standard of living was excessive and unnecessary and was a mistake and was based on D’Amato previously working two jobs and that it was unfair to consider a lifestyle based on income from a prior second job that contributed an average of additional income of $200,00 per year. The court also stated the parties had only lived together as husband and wife for 9 years. It noted prior to the marriage Spolum made $46,000 annually as a flight attendant. The court stated the evidence only supported a rehabilitative award.

The court also stated the trial court failed to consider Spolum’s dubious use of assets during the separation where she transferred $125,000 from the parties’ joint account and only had $40,000 left.

The  court stated the trial court’s finding of the need for discretionary spending of $8,343 per month was excessive. The court also found the trial court clearly erred in finding D’Amato’s income was $950,838 and that spousal maintenance should be based on the obligor’s income at the time of trial. The court noted it was unreasonable for a court to require D’Amato to work a second job in order to satisfy a maintenance award when Spolum is not required to work even one job.

The issue of spousal maintenance is a very difficult matter and requires careful evaluation of numerous factors and often the assistance of experts, including an experienced family law attorney. It is critical to promptly retain an experienced divorce lawyer if spousal maintenance is a potential issue.

Anti-Palimony Statute Does Not Bar Claim For One-Half Interest In Property Listed As Joint-Tenant

In Lendzyk vs.Wrazidlo, A14-1331 (Minn. App .July 13, 2015) the Minnesota Court of Appeals interpreted the Minnesota Anti-Palimony statute in an appeal involving a couple who were dating and commingled money in a new home they built. Boyfriend Lendzyk and girlfriend Wrazidlo began dating in 2006. At that time each owned a home in northern Minnesota. Girlfriend sold home and moved into boyfriend’s home with her two children. They then decided to build a home together. In 2008 girlfriend bought a lot, title to lot was recorded in her name and she financed a construction loan for the home.

After the construction was completed the parties arranged to refinance the construction loan. The loan was refinanced into joint tenancy and both parties signed a mortgage identifying them as joint tenants and girlfriend signed a quit claim deed that conveyed her interest in the property to herself  and boyfriend as joint tenants.

The relationship ended in 2010. In 2012 the boyfriend brought a partition action claiming one-half interest in the property requesting the property be sold and the proceeds be divided between the parties. Testimony was taken that since girlfriend sold her home she would initially buy the lot and pay the majority of the construction costs. After the home was built boyfriend would pay the refinancing cost and then pay for mortgage and insurance. The parties looked at and selected the lot together. Boyfriend testified that the parties agreement was to own the property together, build it together and start a family together. He was going to become more financially involved once he sold his home. Boyfriend paid $10,532 toward closing costs and made monthly mortgage payments and property insurance from 2008 to 2010, which together totaled $77,323. Girlfriend presented evidence she had put $201,171 towards purchasing the property and improvements.

Trial court found anti-palimony statute did not bar boyfriend’s claim to an interest in property and found that as joint tenants, the property should be sold and the proceeds equally divided.

On appeal the court interpreted the anti-palimony statute, Minn. Stat.  513.075, which in part provides that a contract between a man and woman living together out of wedlock is enforceable only if: (1) the contract is written and signed by the parties, and (2) enforcement is sought after termination of their relationship.  Minn. Stat. 513.076 states that unless a contract is executed complying with Minn. Stat. 513.075 a court is without jurisdiction to hear the matter and shall dismiss it as against public policy.

The court appeals affirmed the trial court’s decision citing to two other cases. In, In re Estate of Ericksen, 337 N. W. 2d 671, 674 (Minn. 1983) the supreme court held that even though cohabitants had not signed a contract detailing their financial arrangements regarding a home and it was solely titled in on party’s name, the probate court properly considered an unjust enrichment claim to a one-half interest in home where both parties equally contributed to the purchase and maintaining the home. In another case In re Palmen, 588 N.W. 2d 493 495 (Minn. 1999) two cohabitants agreed to built a log cabin together on a lot owned by Palmen.  After Palmen died cohabitant Schneider claimed an interest in log cabin stating it was agreed if their relationship ended she would be reimbursed her investment for labor and financial contributions to the log cabin’s construction. The trial court denied the claim, but the supreme court reversed holding the anti-palimony statute does not bar the enforcement of unwritten agreements between parties living together if a party can establish the agreement was supported by consideration independent of the couple living together in contemplation of sexual relations out of wedlock and that the party is seeking to protect their own property and is not seeking to claim the property of the cohabitant. The court noted under the facts in the current case the party was seeking to protect his own property and it was supported by independent consideration unrelated to the cohabitation.

Girlfriend also claimed boyfriend’s interest should not be one-half, but limited to the amount of his contributions. The court stated if a property is held as joint tenants there is a presumption of equal property interests. The court found this presumption was not overcome based on the evidence. The trial court found girlfriend’s testimony that boyfriend pressured her to put his name on deed and mortgage was not credible and that the only other evidence presented to rebut the presumption of equal ownership was that girlfriend made greater contributions to the property.  The Court upheld the trial court’s decision to equally divide the sales proceeds in light of lack of other evidence to rebut the presumption.

In any property or relationship dispute it is prudent to seek representation and advice from an experienced family law attorney.

Courts Cannot Retroactively Modify Child Support For Receipt Of Social Security Derivative Benefits Received Prior To Service Of Motion

In, In Re The Matter of Dakota County vs .Gillespie, A13-1240, (Minn. July 22, 2015) the Minnesota Supreme Court addressed, a Child Support Magistrate, District Court and Court of Appeals decisions that granted in part retroactive modification in child support and credit for prior derivative social security paid to the mother commencing in 2012 due to the father retiring due to a disability and him receiving social security disability benefits. At that time mom began receiving a derivative social security benefit for the children in the sum of $1,748 a month, while the father was ordered to pay $1,872 a month. Father sought a reduction because of his reduced income in retirement and the derivative benefits received by mom. Mom moved for an upward departure.

The child support magistrate granted father’s motion ,in part, offsetting the child support obligation by the derivative benefit amount reducing child support to $229 a month and also gave a partial credit for the social security benefits from the time they commenced. The magistrate stated this credit was not a retroactive modification. The magistrate relied on a Minnesota Court of Appeals decision Cty. of Grant v. Koser, 809 N.W. 2d 237, 244 ( Minn. App. 2012), which stated the child support statute did not specify the manner a court must subtract social security benefits from a support obligation, and does not limit applying a credit to either arrears or a current support obligation. The district court and subsequently the Court of Appeals affirmed the majority of the magistrate’s decision.

The Supreme Court accepted review and reversed finding a careful reading of all child support statutes 518A together reflect it is error to grant credit for derivative social security benefits received by the mother prior to when father serves notice of motion to modify. The court stated the court of appeals and the decision in Koser misinterpreted the child  support statutes. The court noted since the statute relative to derivative social security benefits did not expressly provide a post-order mechanism to account for when the benefits commenced, it stands to reason the modification and recalculation is governed by the general modification statute, which precludes retroactive modification prior to service of the motion.

New Custody Law Factors Starting August 1, 2015

After years of debate Minnesota has substantially revised the “best interest factors” to determine Custody under Minnesota Statute 518.17, effective August 1, 2015. There have been meetings and substantial debate since 2012 on how the custody laws should be modified. An important overriding factor considered was to promote the best interests of the child by promoting the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents. The factors now emphasize pieces that impact a child’s safety, stability and well-being and nurturing relationships. A shift now more explicitly looks at a child’s relationship with both parents.

The prior law included 13 factors and an additional 4 factors if either party requested joint physical custody. The new law now relies on 12 factors in each case.

1) How does a proposed custody arrangement impact a child’s development and a child’s physical, emotional, cultural, spiritual, and other needs? This is to focus on the child’s needs rather the parental requests as a factor.

2) A court shall consider any special medical, mental health, or educational needs of the child requiring special parenting arrangements. This is a whole new factor.

3) A court shall consider the reasonable preference of the child, if the court determines the child to be of sufficient ability, age, and maturity to express an independent, reliable preference.

4) A court shall determine whether domestic abuse has occurred in the parent’s relationship or household and the implications of the abuse for parenting and the child’s safety, or developmental needs.

5) A court shall also look at whether any  physical, mental or chemical health issue of a parent impacts a child’s safety or development.

6) A court shall consider the history and nature of each parents participation in providing care for the child. Appears to simply the prior primary caretaker factor.

7) A court is to look at the willingness of each parent to care for the child, to meet the child’s developmental, emotional, spiritual, and cultural needs and to maintain consistency and follow through with parenting time.

8) A court shall evaluate the child’s well-being and development of changes to home, school, and community.

9) A court shall evaluate the effect a proposed arrangement on realtionships between the child and each parent, siblings and other significant persons in the child’s life.

10) A court shall determine the benefit to the child in maximizing parenting time with both parents and the detriment in limiting parenting time with either parent.

11) Except when domestic abuse has occurred the court shall evaluate the disposition of both parent’s to support the child’s relationship with the other parent and to encourage and permit frequent contact with the other parent.

12) The willingness and ability of parents to cooperate in raising the child and to maximize sharing information and to minimize exposure to parental conflict as well as utilize methods to resolve disputes on major issues impacting the child.

The law changes are yet to be interpreted, but appear to make major shifts in emphasis on the child’s needs and yet to be broader in focusing on both parents.

In dealing with Custody issues it is always best to retain experienced legal counsel to be fully prepared to artfully advocate your concerns and interests. There are many decisions to made in custody disputes concerning the Process, Experts, Mediators or Litigation, which are best handled with the assistance of knowledgeable legal counsel.