All posts by Arrigoni Law

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-Ordered Grandparent Visitation Upheld in Minnesota

        The Minnesota Court of Appeals recently upheld an order awarding generous visitation to grandparents in A.B. v. Verzhbitskaya, A14-1656, (Minn. Ct. App.  June 15, 2015).  The Court held that a visitation schedule that provided the grandparents with one weekend and one weekday afternoon a month as well a weekly school visits, a nine-day summer visit, and daytime visits on both Thanksgiving and Christmas Eve was not excessive.


Minnesota Statute 257C.08, subd. 1 (2014) provides that, when a parent of a minor child is deceased, the court may order reasonable visitation by the deceased parent’s parents (the child’s grandparents) if the visitation is in the best interests of the child and the visitation will not interfere with the relationship between the surviving parent and the child, and the court is to consider the amount of contact with the child and his/her grandparents before the parent’s death.  The courts have held that the grandparents bear the burden of proof that their visitation will not interfere with the parent/child relationship.


Understanding the Case


In this case, the child had turned eleven shortly after the father’s death, and there was no dispute that the visitation with the grandparents was in the best interest in the child.  In fact, there was testimony that a school counselor had encouraged the grandparents to visit the child at school during lunchtime.


Before the father’s death, the mother had sole physical and legal custody, and the father had parenting time on alternating weekends and Wednesday overnights.  The grandparents testified that they frequently saw their grandchild during their son’s visitation time.


The Court’s Decision


The Minnesota Court of Appeals first held that the amount of visitation time was not excessive.  It noted that the amount of time was significantly less than the amount of parenting time that the father had enjoyed when he was alive and it was consistent with the amount of contact that the grandparents had with their grandchild during the father’s lifetime.


The appeals court also found that the grandparents had met the burden of proof that their visitation would not interfere with the mother’s relationship with her child.  Although the mother had cultural concerns that the grandparents were interfering with her decision to raise her child in the Russian Orthodox Church and had taken the child to Catholic church, the court found that the grandparents had provided credible testimony that they would accommodate the mother’s concerns and they would no longer take the child to Catholic church if they had visitation.


The court completely disregarded the mother’s claims that the grandparents had interfered with her legal rights to her ex-husband’s estate, stating that those financial concerns were irrelevant to the parent/child relationship.  Thus, it is important that any claims of interference by grandparents focus on the relationship between the parent and child and not on financial issues between the parent and the grandparents.


Also rejected was the mother’s argument that other family members be barred from assisting in dropping the child off and picking the child up.  The court found the argument was forfeited because the mother did not provide any legal authority to bar others from facilitating the transfers of the child.


The court did reverse the district court’s decision awarding visitation to relatives other than the grandparents, such as the child’s aunt.  The court held that the statute limits visitation to grandparents, so there was no legal basis to extend independent visitation to aunts and other family members.  The court did note that the grandparents did have the right to allow other relatives to join with them in their visitation time.
Do you have questions about a family law issue, including visitation, support or custody? Be sure to contact an experienced Minnesota family law attorney for tailored guidance and counsel.

Family Law – Interpreting Antenuptial Agreements in Minnesota

The Minnesota Court of Appeals recently addressed antenuptial agreements in Peterson v. Deeb, A13-2259 (Apr. 27, 2015).  As opposed to the more well-known “prenuptial agreement,” antenuptial agreements are made between partners after they are already married. The details agreed to in the contract are typically the same as those in prenuptial agreements, including property division, support, and similar matter.


Minnesota courts have long recognized antenuptial agreements, which change the statutory provisions for dividing both marital and nonmarital property when marriages are dissolved. Minnesota Statute Section 519.11 codifies the state law on antenuptial agreements.  Agreements are enforceable if the parties provide each other with a full and fair disclosure of their assets and income and the parties have the opportunity to consult with independent legal counsel of their own choice.  When these two requirements are met, the party who challenges the agreement has the burden of proof to show that the agreement was invalid.


New MN Family Law Case


In this case, the wife had been the sole owner of the parties’ home before the marriage; her equity was $75,000.  There was no dispute that the parties disclosed all of their assets and were represented separately by independent counsel throughout the negotiations and drafting of the agreement.  Under the terms of the agreement, the wife retained her $75,000 nonmarital interest in the home, but the parties agreed that any future increase in value would be considered marital property.  Thus, within 30 days after the marriage ended, the homestead was to be transferred into joint tenancy, with both parties as obligors of the mortgage.


After the antenuptial agreement was signed, the parties refinanced the homestead and used that money to purchase a cabin.  The district court found that the parties’ equity in the homestead, including both marital and nonmarital assets, had been eliminated by both the refinancing and by a decline in market value.  Thus, the district court found that selling the parties’ cabin and other real property would enable them to pay each for their nonmarital contributions to the purchase of these assets.  However, the district court awarded the wife $75,000, her interest in the homestead protected in the antenuptial agreement, and the husband was awarded $15,417 for his nonmarital contribution.


Points of Contention


In this case, the issue was the interpretation of the agreement, not the validity of the antenuptial agreement itself. The district court rejected the husband’s argument that the wife’s nonmarital interest of $75,000 was eliminated when the parties refinanced the homestead and its value decreased.  The Court of Appeal upheld the district court ruling.


In reviewing that lower court decision, the Court of Appeals noted that the purpose of contract interpretation is “to give effect to the parties’ intent,” and that a court should “avoid any interpretation that would make a contractual provision meaningless.” The Court of Appeals found that the “overriding purpose and intent of the parties” was to protect each party’s nonmarital party in the event the marriage was dissolved, including both the wife’s $75,000 in equity and the husband’s separate bank account.  The agreement itself did not indicate that purchasing other assets with non marital funds or commingling marital and nonmarital property would result in the marital property being eliminated.


The district court held (and the Appeals Court agreed) that the husband’s interpretation, which would eliminate the wife’s nonmarital asset, was “unconscionable” and unfair.   The Appeals Court also found that the district court’s enforcement of the agreement was fair and equitable.  When the parties married, their only real estate asset was the wife’s $75,000 in equity.  When they divorced, more than twelve years later, their equity had increased to $235,000, so the wife’s nonmarital asset ($75,000) was now only 31.9% of the parties’ total equity.  After the awards to each party of their nonmarital assets, 61.5% of the equity remained to be distributed as marital property.   Thus, the parties had obtained a significant increase in their joint assets during the course of the marriage.


Get Legal Help
This case illustrates the importance of obtaining legal counsel whenever an antenuptial agreement is considered.  For questions about these or any other Minnesota family law issues, be sure to seek out the aid of an experienced family law attorney for tailored guidance.


In Arnold v. Arnold, A14-1097 (Minn. Ct. App. Apr. 27, 2015), the Court of Appeals upheld an order for protection (OFP) although the husband argued that the wife was not presently being harmed, finding that the district court could infer a present intent to commit domestic abuse based on the totality of the circumstances.  The abuser’s past behavior may be considered, but it is not dispositive.


The Family Law Case

Minnesota’s Domestic Abuse Act, Minn. Stat. Section 518B.01, allows a family member to petition for an OFP in case of domestic abuse.  The statute defines domestic abuse as:  “(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, criminal sexual conduct, or interference with an emergency call.”   518B.01, subd. 2(a).  To find domestic abuse, there must be a showing of present harm or an intention to do present harm.  The Act is remedial and, therefore, intended to protect domestic abuse victims, not to punish the abusers.

In Arnold, the court found three separate abusive acts occurred on the same day, December 21st.    First, he put his hand in the shape of a gun against her temple, making the sound of the gun and yelling a curse at her, and poked her with his fingertips and caused pain which the court found was both   (1) physical harm, bodily injury or assault and (2) the infliction of fear of imminent physical harm, bodily injury or assault.  Second, he threw a vase at her although it hit the wall; the court found that was (2) the infliction of fear of imminent physical harm, bodily injury, or assault.  Third, when his wife tried to call 911, he grabbed the phone out of her hands; the court found that was (3) interference with an emergency call.

The huRow of law books on shelfsband argued that subsequent events showed she was not afraid of him and, even if she was afraid, her fear was unreasonable.  He noted that he had petitioned for divorce, and they exchanged text messages.  The Minnesota Court of Appeals noted that it accords great deference to the district court’s determinations regarding credibility, and the district court had found the wife’s testimony credible, noting text messages with her mother from the time in question.

The court also found that the four-month span between the events in question and the wife’s filing for the order of protection was an insufficient gap to weigh against an OFP.  The court noted that a two-year gap between an incident of domestic abuse and filing for an order for protection is a long passage of time that may weigh against an order of protection, a four-month span of time is not so remote.   Therefore, the court upheld the order for protection.

This case does suggest that it is a good idea to pursue an order for protection quickly. It is always best to promptly petition for an order of protection rather than waiting months or years to file. As in most legal arenas, timeliness is in your best interests.

If you need an order for protection or someone has sought an order of protection against you in our area, you may want to consider consulting an experienced Woodbury family law attorney today.

Minnesota Will Only Recognize a Foreign Marriage if the Marriage Was Valid Where Performed

The Minnesota Court of Appeals recently reversed a district court decision that had recognized a “cultural marriage ceremony” performed in Thailand because there was no evidence that the marriage was legally valid in Thailand.  Chang v. Yang  #14-1158 (Minn. Ct. App. Apr. 27, 2015).  The Court of Appeals held that, to have a valid foreign marriage recognized in Minnesota, the marriage must have been valid in the place where it was performed, here Thailand.


The Minnesota Family Law Case


In this case, the two individuals had participated in a traditional Hmong wedding ceremony almost forty years ago while they were living in a refugee camp in Thailand.  They held themselves out as husband and wife until the wife filed for divorce, and the husband objected, claiming they were never married.

They both took oath before an American official stating that they were married, and then they immigrated to the United States in 1978.  They filed tax returns as “married filing jointly” for twenty-five years.  They had six children, all of whom were adults by the time their mother filed for divorce.

The appellant argued that they were not legally married because, although they participated in a Hmong cultural marriage ceremony, that ceremony did not meet the requirements of Thailand for a legal marriage.  He also said that the appellee was already married to another man at the time of the Hmong cultural ceremony.

The Minnesota Court of Appeals agreed with the appellant that a cultural marriage does not create a legal, valid marriage and that the district court was required to determine whether the Hmong cultural marriage would create a legal marriage in Thailand.  The Minnesota Supreme Court stated the following rule:   “The validity of a marriage is normally determined by the law of the place where the marriage is contracted.  If valid by that law the marriage is valid everywhere unless it violates a strong public policy of the domicile of the parties.”   In re Kinkead’s case, 239 Minn. 27, 30, 57, N.W.2d 628 631 (1953).

The Minnesota Court of Appeals found that the appellant had presented evidence that the cultural marriage was not a valid marriage, namely, material from the U.S. Embassy in Thailand that marriage requires in-person registration of the marriage in the local Civil Registry Office and that Thailand does not recognize common-law marriage.  The court noted that the parties did not have a marriage certificate, and there was no evidence that either party attempted to register the marriage with the Civil Registry Office.   The court found that they had taken an oath before an American official as part of immigration proceedings and that it did not appear that such an oath would support a valid Thai marriage.

The court, thus, remanded the case to the district court to determine whether the cultural marriage was valid under Thai law.

The court also required that the district court issue findings of fact and conclusions of law whether the respondent was entitled to  “putative spouse status,” as per Xiong v. Xiong, 800 N.W.2d 187, 191 (Minn. Ct. App. 2011).


Help with Minnesota Divorce
If  you need a divorce or are considering a motion to modify an order and judgment dissolving a marriage, you should consult an experienced Minnesota family law attorney.

How to Help Your Children When You Separate or Divorce

For people who are childless, divorce is relatively straightforward; once they are divorced, they never have to see each other again.  But when people have children, they are bound together for life in some ways, regardless of their marital status. They also have to worry about the third parties to the separation and divorce, their children.  It is critical to focus on what is best for the children.  In addition, if you are ever in litigation with your ex-spouse, having a record of having acted in the best interest of your children will serve you well).

HelpGuide has a great guide on helping children of any age cope with separation and divorce.  The Mayo Clinic also has a good discussion of this topic. Parents can help their children by providing stability and reassurance to the children.  Remember, that your children’s needs come first, and they need to feel loved by both their parents, and they usually want both parents to remain an important part of their life.   They also need to know that the separation or divorce was a grown-up decision that had nothing to do with them.

You may not be married anymore, but you are parenting partners for life

You need to take the long view.  If your children are young, you and your spouse, or a court, will get to decide how much time each parent has with the child.  However, once they are adults, they will get to decide how much, if any, time they spend with their parents.  If you nurture a warm loving relationship with your children, you may be invited to share their lives.

Also, no matter how bitter and unhappy you and your ex are now, you will likely come together for family events for the rest of your lives.  If your children are young, there will be school events and extracurricular events where both parents are invited.  As children get older, there will be graduations, and possibly weddings and grandchildren.  Will you be together for the children’s birthdays or will you celebrate them separately? Will you alternate Christmas and Thanksgiving?

Sad child in front of arguing parentsBecause parental conflict can be traumatic for children, it is best if you and your spouse can form a partnership, working together for the best interest of the school.  Otherwise, your children may learn to manipulate you and play one parent against the other.  You will need to bite your tongue and not say anything derogatory about your ex to your child; your relationship with your ex is your decision, but your children love both parents and need both parents in their lives (unless one parent has been abusive either to you or to the children – that’s a different situation).

If tensions are high with your ex, see if you can arrange drop-offs and pick-ups so that you do not need to see each other.  Today, you can handle arrangements with a Google calendar and communicate by texting or email, reducing the opportunities for person contact.  Do not confide problems with your ex to your children.  You will need to develop other friends that you can confide in.

Telling children about the news about the big change

You and your ex need to think carefully about how you will explain this change in your lives.  You should do the best you can to be on the same page, and anticipate what will be of most concern for your children.  They will want to know where they will live and when they will see both parents.  If they are teens, they will want to spend time with their friends as well as with their parents.   Ideally, you would both sit down together with the children and explain what will happen.

  •       Tell them the truth, but remember you don’t have to tell them everything.  Be sure you let them know that while parents can fall out of love with each other, they can never stop loving their children.
  •       Tell them you love them.
  •       Share information about the logistics of their new life. Will they stay in their current home and school?  Will then need to move?  Will their parents share custody?  When will they see each parent?  What if they want to spend time with their friends?

Help your children grieve

For many children, a separation or a divorce is traumatic, a major change in their lives imposed by their parents.  You can help by giving your children choices, and by helping them grieve.  Be sure to listen to them and encourage them to express their feelings.  And acknowledge their feelings rather than dismiss them.

Stay connected to your children

Being the noncustodial parent can be painful, but it is important to stay in touch with your children.  Technology has made it so much easier to stay in touch; even if you live far away, you can Skype regularly and call.  Sometimes its useful for even young children to have their own telephone, so parents can contact them directly.

If you need legal help with any family law matter in Minnesota, including custody issues, contact Arrigoni Law today.

The Divorce Process

Going through a divorce is a difficult, emotional time in most people’s lives. It also can be very expensive if you end up in protracted litigation,a trial,and an appeal. In the last five years the courts have tried to streamline the process by implementing an Early Case Management Program. The program is designed to encourage court intervention within three to four weeks of the filing of a case.

After a case is filed an Initial Case Management Conference (ICMC) is scheduled with the judge or referee that will be assigned to your case (except in Dakota County where you do not receive an assigned judge). This hearing is normally scheduled within a month after the filing of the case with the court. The purpose of the ICMC hearing is to meet your judicial officer and have his or her immediate input into the process and your case. Normally at this hearing the parties are barred from bringing any motions, but are required to submit some general financial data and other background information, including information about children, the issues, assets and income.

At the hearing the parties discuss Alternative Dispute Resolution (ADR) options such as Mediation, Social Early Neutral Evaluation (SENE) and Financial Early Neutral Evaluation (FENE). Normally it is mandatory for the parties to agree on a Mediator or a professional to conduct a SENE or FENE as part of the Alternative Dispute Resolution Process, which is required,except under a few exceptions. Discovery(the exchange of information) and scheduling issues are also discussed to establish deadlines to move the case forward. Prior to the Early Case Management process, often a party would not see a judge until a Temporary Hearing, which could take longer to schedule. This also would be an adversarial hearing right from the start to litigate temporary custody, temporary child support, temporary spousal maintenance,homestead possession, or temporary debt division

Most judges now require immediate ADR before the scheduling of a temporary hearing unless there is an emergency or unusual circumstances. This is designed to encourage ADR and lessen litigation with the hope that people can reach settlements without the destructive personal attacks and the expense and time on the court system for a temporary hearing.

Issues involving custody, parenting time, or the children are addressed in a Social ENE (SENE). All financial matters such as spousal maintenance, child support, property division, debts and attorney fees are addressed in a Financial Early Neutral Evaluation (FENE). Each county has a roster to select an evaluator.  The evaluators are highly experienced in that respective area of the law or in custody and parenting time issues. Normally it is expected and required the ENE will occur promptly and that both parties and their attorneys will be mandated to attend.

At the ENE meetings both sides present relevant facts, information and data or financial information about income, assets, debts or about custody and parenting and may be questioned by the evaluator about necessary information so they can provide an evaluative opinion about what a particular court may likely to do with their case as far as the likely outcome. This process is totally confidential and no information or recommendations made by the evaluator can be used or presented to the court at a later time. If a complete settlement is reached the parties can waive the confidentiality of the meeting and present the complete final settlement. Neither side has to accept the recommendation, but are encouraged to consider it to be used as a starting point to mediate or reach a compromise on the issues. Each county has a sliding fee schedule governing the costs and fees for an ENE.

If the parties are still unsuccessful in reaching a settlement the court is notified the process has been completed and a settlement has not been reached. The rules bar the parties, counsel or the evaluator from discussing what occurred at the ENE. The matter then moves forward and proceeds to a Pretrial and if still unsettled a Trial.

It is important to have experienced counsel to guide you through this process and prepare you for the ENE as well as assist with the selection of a quality Evaluator. Often times there are also negotiations that take place if either party rejects the Evaluator’s opinion and a party would benefit greatly by having the input of an experienced divorce lawyer.

Jeff is trained and serves as Early Neutral Evaluator for both a SENE and a FENE and is also a mediator and  Rule 114 Neutral.  With 31 years of experience as an attorney he can successfully guide you through the process.


Finding of Parental Alienation Leads Court to Modify Award of Custody

In Busch v. Christian, A14-0687 (Minn. Ct. App. Mar. 9, 2015), the Minnesota Court of Appeal upheld a decision of the trial court modifying a custody order to award sole legal and physical custody to a father because the mother had been alienating the child from the father.   In this case, the parents had never been married, but the father’s paternity was recognized soon after the child’s birth.  The initial child custody order had awarded both parties joint legal custody, with sole custody to the mother and parenting time to the father, increasing as the child got older.

Relying on Minnesota Statute section 518.18, the court found that four elements had to be established in order to modify a prior custody order:  (1) a change in the circumstances of the child or custodian; (2) modification would serve the child’s best interest; (3) the child’s physical or emotional health or emotional development is endangered by the current environment; and (4) the harm to the child likely to be caused by changing the environment is outweighed by the advantages of the change.   The court found that all four elements were met. books

The court found that there had been a sufficient change in the circumstances of the child or custodian to support modification of custody because the mother had constantly negatively referred to the father and refused as many as 29 days of parenting time since the last order and her actions caused the father’s relationship with his daughter to deteriorate.

The court found that modification was in the child’s best interests and provided a detailed analysis of the statutory factors.  The mother challenged the court’s conclusion on four of the factors.  First, the court found that the intimacy of the relationship of the parent and child favored the father, as he genuinely loved the child while the mother tried to alienate the child from the father.  The court was convinced that the mother had an unhealthy relationship with the child, noting that after the father had physical custody, the mother went to the child’s school every day to have lunch with her.  It was noted that the daughter was afraid to tell her mom that she loved her dad because of her mother’s constant negative state.

Second, the court found that the child’s adjustment to home, school, and community favored the father.  The court found that the child was better adjusted at school and with her peers after her father had custody.  It was again noted that the mother’s daily lunches with the child at school interfered with the child’s independence and were inappropriate.

Third, the court found that the continuity of a stable, satisfactory environment favored the father even though the child had lived for a longer period of time with the mother.  There was concerned that, since the change in custody to the father, the child was no longer sleeping in her own room but was sleeping with her mother when she had parenting time with her mother.

Fourth, the court found that the physical and mental health of the parents and child favored the father even though he had a recent DUI conviction because of the court’s concern that the mother because of the mother’s “persistent, uninterrupted and outrageous” interference with the father’s visitation.

It was also noted that the child had adjusted well to her father’s custody. And that she had improved in some significant aspects, including her hygiene.  Although she continued to have difficulties in school, the father had hired a tutor for her.

If you are involved in a custody dispute, you should consider retaining an experienced family law attorney who can assist you in developing a record that will support your claim for custody in light of the statutory factors.

New Minnesota Family Law Case – Rauworth v. Rauworth

In Rauworth v. Rauworth, A13-2104 (Minn. Ct. App. Feb. 2, 2015), the Minnesota Court of Appeals issued significant rulings on (1) post-trial motions; (2) permanent maintenance; and (3) attorneys’ fees.

Post-Trial Motions:  The court upheld the district court’s decision to award an increase of $570 in spousal maintenance, but reversed the district court’s decision to award retroactive maintenance.

The district court had awarded the additional $570 because of the tax consequences of spousal maintenance, which is taxable income to the spouse receiving maintenance and a deduction to the spouse paying spousal maintenance.  The court noted that the rule allowing for amendment of findings of fact requires courts “to apply the evidence as submitted during the trial of the case, and may neither go outside the record, nor consider new evidence.  The court found that the ex-wife’s post-trial exhibit should have been excluded, but that there were enough facts outside of the post-trial exhibit to support the change.  At trial, the ex-wife’s expert had testified about the tax consequences of spousal maintenance, so there was evidence from trial on the issue.  Further, the court found that the change did not unduly prejudice the ex-husband as his income was greater than his expenses, and he would be able to deduct the spousal maintenance from his income on his tax return. Symbol of law and justice in the empty courtroom, law and justice concept.

The court, however, held that the district court erred in awarding six months of retroactive maintenance, as this was a new issue filed for the first time on a motion for amended filings or a new trial.   The court noted that the ex-wife could have moved for the payment of interim maintenance under Minnesota Statute Section 518.131, subd. 1(b).

Permanent Maintenance:  The court upheld the district court’s decision in denying permanent maintenance, noting that the party seeking maintenance has the burden of proof.  In this case, the wife was awarded $600,000 in retirement funds, which would yield retirement income when she reached retirement age.  The court held that the award of rehabilitative maintenance, limited to twelve years, was fair and just because she would have access to retirement income at the end of twelve years.  The court did note that, if she were unable to meet her living expenses at that time, she would be able to bring a motion to modify the maintenance award later on.

Attorneys’ Fees:  The court held that the district had acted within its discretion in denying need-based attorneys’ fees.  The court held that the ex-wife did not show any need for attorneys’ fees as she has a full-time job, she got nearly $800,000 in marital property, and she was awarded substantial maintenance through 2025.   Based on this decision, courts are likely to deny need-based attorneys’ fees where a party has substantial income, including maintenance, and has been awarded substantial assets.

As this case illustrates, it is important to raise all relevant claims and request all relevant relief when you first file for divorce, or, at least, at trial, as it may be impossible to raise new claims after a divorce judgment is entered.  Therefore, if you are considering a divorce, consider hiring an experienced family law attorney to assist you.

Relocation of 6 Year Old Child Out of State Permitted and Child’s Preference Considered

In S.M.K.v.D.M.K.,A14-1070(Minn..App.March 2 2015) the court appeals affirmed a trial court decision permitting a mother to move and relocate the parties’ six year old child to Florida. The Court analyzed all the factors in Minnesota Statute 518.175,subd.3, and ruled the trial court did not abuse its discretion in finding the move was in the child’s best interest.

The father claimed it was ,in part, error to consider the six year old child’s desire to move to Florida.The court accepted mother’s assertion  that although the child is a young age, he has expressed a desire to move to Florida and understands he will see his father less, but wishes to continue to live with his mother and maternal grandparents. Father claimed it was error to accept mother’s claim without any inquiry due to possible manipulation by the mother. The Court of Appeals affirmed the trial court and accepted its finding that there was no evidence in the record to support that the minor child cannot comprehend the meaning of the move to Florida.

The court cited to Peterson v. Peterson, 394 N.W.2d 586,588(Minn.App.1986)(court accepts trial court’s ruling that a seven-year-old child could express a custodial preference)rev. denied(Minn.1986).

The court also rejected Father’s argument that the trial court erred by not awarding him 25% of parenting time, which is the minimum rebuttable presumption under Minnesota Statute 518.175,subd.1(g)(2014). Father claimed the court made no finding why 51 days a year is in the best interests of the child when he should have received 91 days a year. The court found since that argument was raised for the first time in the Motion for Amended Findings it was not properly before the court and the trial court acted within its extensive discretion in granting parenting time less than 25%.

Lastly father claimed the trial court court erred in making the parenting time subject to be agreed upon by the parties without a specific schedule,claiming this would be a cruel joke to try to work out the details of the parenting time, subject to the whim of the mother.The court noted to the extent practicable a court must include a specific schedule for parenting time,including the frequency and duration of visitation and visitation during holidays and vacations as required by Minnesota Statutes 518.175, subd.1(e)(2014).

The trial court ordered two periods of two weeks during the summer months as agreed upon by the parties,one week during the child’s winter break,every spring break,every other Thanksgiving and Christmas holiday, and two of the child’s long weekend breaks from school as set forth in the school calendar, as well as such other parenting time as mutually agreed upon. The Court of Appeals affirmed this schedule noting the father did not propose a specific parenting time schedule to the court and that if there were problems or issues he could seek relief from the trial court, and the schedule  was not an abuse of discretion.