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.

Attorneys Fees in Family Law

In a divorce or family law matter it is important to factor in the cost of attorney fees and Court costs in an action when deciding how you wish to proceed. It is foolhardy to not seek legal advice in divorce or family law matters. It is wise to understand it often may be difficult and expensive to obtain a Court order directing your spouse to pay your attorneys fees in the matter.

Under the law a Court can award fees to enable a party to carry on or contest the proceedings, provided it finds:

(1) that the fees are necessary for the good faith assertion of the party’s rights in the action and will not contribute unnecessarily to the length or and expense of the proceedings;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Minn. Stat.518.14.

A Court can also award fees against a party who unreasonably contributes to the length or expense of the action, or if a party commits fraud, or takes what a Court determines are bad faith actions in a case. Fees and costs can be awarded at any point in the proceeding.

Attorney fees can be obtained when there is a gross disparity in incomes or financial situations in a case, but it often can be expensive and a lengthy process to obtain an award of fees. Sometimes Courts wait until trial after they hear and consider all evidence before deciding an issue involving fees, or make a small temporary award to allow a party to contest the case, but the award often falls far short of the attorney fees required to take the matter through a time-consuming litigation process or trial. It is folly to assume you are going to be awarded every dollar of fees you are incurring, even if there is a disparity in incomes because, in general, Courts are conservative in awarding fees and do not wish to risk encouraging potentially unnecessary litigation. By granting a large temporary award of fees Courts realize this may lead to more litigation rather than a settlement. Generally Courts want matters to settle and not be litigated.  They have very busy Court calendars already and often times ugly divorce litigation is not their favorite way to spend their time.

Instead of counting on or assuming you will be awarded attorney fees the best strategy is to attempt to minimize your own fees because 90% of cases settle short of a trial and it is never easy to negotiate or convince your spouse to voluntarily pay both sides attorney fees.

First carefully review and read your Retainer Agreement with your attorney to understand how you will be billed. Generally numerous phone calls or e-mails to your attorney will lead to a large attorney fee bill quickly. Do not use your attorney as a therapist or as a way to soothe your hurt feelings as it can be very expensive. Find a good friend, or family member, or therapist to talk about your emotional feelings and disappointment. Try to streamline communications to address multiple issues in a single call or e-mail and try not to constantly barrage your attorney with piecemeal information. If possible try to amicably resolve personal property disputes with your spouse without involving your attorney as fees can escalate fast over battles about old TVs or computers or used furniture that have small real current market value.

As hurt as you may be, try to be civil and respectful to your spouse. Personal or verbal attacks may give you temporary satisfaction, but may lead to a barrage of payback attempts to get even or other strategies to punish you in a revengeful manner that will lead to much larger attorney fees for both sides. It can also lead to expensive collateral actions such as Orders for Protection, or Harassment actions, which lead to more fees.  Do not let your emotions drive your actions. Treat your divorce as a business transaction and negotiations, as hard and as cold as that sounds.

Be honest with your attorney and do not hide information or assets. The more your attorney knows the better they can quickly plan how to settle your case. Trying to hide information or assets is unwise and can be deemed fraudulent and that can lead to an attorney fee award and also discredits your credibility with the Court. This can lead to very bad results no matter how good your attorney may be. It can also lead to length discovery requests, or information requests, from your spouse’s attorney, or depositions that lead to much higher attorney fees.

When your attorney requests information or documents, timely get the documents and provide them in an organized fashion. Do not procrastinate in getting information or documents as this leads to follow-up e-mails, letters, or phone calls and more fees and expense. You can save a great deal of expense by carefully organizing the statements, by file folder or clips in order. There are far too many cases where clients bring in a grocery bag of documents accumulated over years that are a mess and take hours to organize and often are incomplete, which again leads to higher fees for a paralegal or staff to try to organize and additional frustration for you.

Keep your children out of the middle of your divorce. Do not attempt to alienate your children against the other parent. If a party feels a parent is undermining a relationship with their children this will lead to anger and hard feelings and more litigation or efforts to get even. It also will cause great emotional harm to your children.

Lastly follow your attorney’s advice. Do not believe you know better or assume you can take shortcuts without seeking the attorney’s input, in particular in negotiating important settlement details, because there may be legal reasons for negotiating a certain way. When in doubt, talk to your attorney, and always before you commit orally, or in writing to any settlement seek your attorney’s input. After you verbally agree to a settlement with your spouse it often can be very difficult to backtrack and negotiate important other matters that may have been forgotten or neglected and this leads to litigation as people get entrenched in verbal promises made along the way.

I know everyone tries to keep their costs down in a Family Law matter, but usually it is more cost effective to discuss your case and the actions that you are considering before you take action, rather than trying to undo it after the fact. It should always be the attorney’s goal to settle your case short of going to trial, which will minimize your own attorney fees because it can be very difficult, time-consuming and cost prohibitive to go through a trial and to attempt to make your spouse pay your attorney fees. Even if the Court does decide to award you attorney fees the Court may only award a small portion of the fees you incurred.

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.

Denial of Spousal Maintenance Not Abuse of Discretion In Considering Investment Income From Property Settlement Sufficient To Meet Monthly Needs

In Curtis v. Curtis, A14-1841, (Minn. Ct. App. June 22, 2015) the Minnesota Court of Appeals affirmed a trial court decision to deny a wife’ request for spousal maintenance, based on imputed income from the reallocation of a property settlement from growth investments to income investments based on an  expert who testified wife could earn 7 percent on her investments if she allocated them from growth funds to income funds. The expert testimony was not rebutted at trial. The court determined the trial court did not abuse its discretion by considering the reallocated investment strategy  and that the investment income was sufficient to meet wife’s monthly needs. The court noted that the reallocation of investments in the property division was not an invasion of assets or improper in light of the expert testimony to support the determinations.

In Curtis the court was faced with a couple who was married in 1990 and separated in 2012 or 2013. Husband worked as a dentist and managed the parties investments. They had two children one was now an adult and a 16 year old son. Wife was awarded the house and investments totaling $2,209,399 or 57 % of the marital estate , while husband received 43% of the estate.  Based on expert testimony the trial court determined wife could reallocate growth funds to income producing funds and meet her reasonable monthly expenses. It was noted the spousal maintenance statute, Minn. Stat. 518.552, subd. 2(a) requires a court to consider financial resources, which include income generated by liquid assets citing to Fink v. Fink, 366 N. W. 2d 340, 342 (Minn. Ct. App. 1985).

The court stated the trial court’s decision did not invade her property award to meet her expenses and was not an abuse of discretion. A dissenting Judge noted the tax consequences of reallocating the assets would be significant and was not considered.The court, however, found the trial court was within its discretion not to consider the tax consequences citing to Maurer v. Maurer, 623 N. W. 2d 604, 608 (Minn. 2001), which found that whether to consider the tax consequences of a property division lies within the trial court’s discretion.

This case raises many potential issues to be carefully considered in spousal maintenance cases and makes it clear it is important to present expert testimony on potential investment income and its impact on cash flow or other important financial issues.

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.

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.