Category Archives: Child Support

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.

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.

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.