Category Archives: Divorce

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.

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.

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.


Divorce Proceedings, the Death of a Spouse, and Marital Assets

Divorce Proceedings, the Death of a Spouse, and Marital Assets

In Nelson v. Nelson, A14-0200, (Minn. Ct. App. Oct. 6, 2014), the Minnesota Court of Appeals held that Minn. Stat. 518.58, subdivision 1a, which prohibits spouses contemplating divorce from transacting in or using marital assets so as to obtain a loss or profit without first getting consent from the other spouse’s consent, applies only to dissolution proceedings, and, therefore, do not apply when dissolution proceedings are terminated by a party’s death.

Nelson v. Nelson

In this case, the appellant, Kimberlee Nelson and her husband, Michael Nelson, were married in 1996. His will intentionally omitted his wife as a beneficiary of the estate. In 2007, he bought a life insurance policy with a million dollar benefit, naming his wife as the primary beneficiary, with the premiums being paid by his business. Then, in February 2012 he asked an attorney to prepare a joint petition and stipulation to dissolve his marriage to Kimberlee. Before he initiated the divorce proceedings, he changed the beneficiary of his life insurance policy to his parents and sister. After doing so, in May 2012 he served Kimberlee with a summons and petition for divorce. He died in September 2012, before the marriage could be dissolved.

After Michael died, his mother was appointed personal representative, and Kimberlee, his widow, asked for the rights of a surviving spouse despite the being excluded from her husband’s will, including homestead rights, a family allowance, household furnishings, and an elective share of his estate. She also brought a declaratory judgment action, claiming that the change of designated beneficiary of the life insurance policy constituted a transfer of marital assets in contemplation of divorce, which is barred by Minnesota Statute Section 518.58, subdivision 1a. The district court granted summary judgment to Michael’s parents and sister, and an appeal followed.

The Minnesota Court of Appeals affirmed the district court’s decision and held that the statutory prohibition on transferring assets did not apply in this case because there was no dissolution proceeding, as the husband died. The court held that the only remedy available under Section 518.58, subdivision 1a, is one imposed in a dissolution proceeding during the division of marital property. Thus, if one spouse has violated the provision, the court “may impute the entire value of an asset and a fair return on the asset to the party who transferred, encumbered, concealed, or disposed of it” in the dissolution proceeding. But, because Michael was dead, there was no dissolution proceeding available for a remedy. Under Minnesota law, when a party to a marriage dies during the pendency of a dissolution proceeding, the dissolution proceeding is terminated because the marriage, having been ended by death, no longer needs to be dissolved. Thus, when Michael died, his wife was his surviving spouse, and had no dissolution proceeding pending to obtain the requested relief.

The Minnesota Court of Appeals made clear that it frowns on “double-dipping,” namely using rights as a surviving spouse and as a party to a dissolution proceeding. Thus, Kimberlee was limited to her rights as a surviving spouse, and a spouse only vests in life insurance benefits if she is the beneficiary at the time of death.

Non-Marital Property Becomes Marital Property when Commingled with Marital Property

Be Careful: Non-Marital Property Becomes Marital Property when Commingled with Marital Property

In Wallace v. Wallace, A13-2167 (Oct. 6, 2014), the Minnesota Court of Appeals held that non-marital property in bank accounts became marital property when the funds were commingled with marital property acquired during the marriage.

In this case, the wife asked that funds in a checking account and a savings account be awarded to her as non-marital property. Both accounts had belonged to her before the marriage. However, after she was married, she deposited her wages in the checking account and used the funds in that checking account to pay the couple’s monthly bills. She also made use of the funds in her savings account, by moving funds from the savings account to the checking account when needed to pay bills; she would then repay the savings account with her wages earned during the marriage.

The district court accepted the wife’s argument and awarded her $1,182.27 of the funds in the checking account and $20,076.91 of the funds in the savings account. The husband appealed.

The Minnesota Court of Appeals reversed the district court. The court noted that there is a rebuttable presumption that any property acquired by a married person during the marriage is marital property as well as a presumption that property acquired before the marriage is non-marital property. Minn. Stat. Section 518.003, subd. 3b. When a marriage is dissolved, the non-marital party goes to the party to whom it belongs while the marital party is divided equitably between the parties. Minn. Stat. Section 518.58, subd. 1.

Here, there was no dispute that the spouses commingled the marital property (the wife’s income during the marriage) with the non-marital property that she held before the marriage.   The wife argued that, looking at the balances of the accounts at the start of the marriage, the deposits, withdrawals, and balances at the end of the marriage, the non-marital property could be determined. The court rejected her argument, finding that the only way to maintain the non-marital character of the funds is either to maintain it in a separate account distinct from marital assets or to trace the funds by showing particular items of tangible property that were bought with non-marital funds.


How the Court Decided

The court relied on precedents that have held that commingling marital and non-marital funds converts all money in the account into marital property when the account is used for ordinary living expenses and the non-marital funds are not traced to a particular asset.

In order for non-marital assets to remain non-marital assets and belong solely to one spouse, the funds must either be segregated and not used for any marital expenses or must be used to purchase a tangible asset, enabling them to be traced to that asset. Thus, if non-marital assets are used to purchase (in full) a specific item, such as a valuable painting, that painting becomes a non-marital asset. But if the non-marital asset is used for living expenses, then it becomes a marital asset, in the absence of a premarital agreement.

Thus, the court held that all the funds in the accounts were marital property and, therefore, needed to be divided equitably.

In this case, the wife did not file a responsive brief to the Minnesota Court of Appeals. As this case illustrates, even if a party has won at the district court, if the case has been appealed, the party should file a brief in the appellate court. If you have any questions about preserving the non-marital character of your property, you should consult a family law attorney.