Category Archives: Stillwater Divorce Lawyer

Pitfalls In Handling Your Own Divorce

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

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

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

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

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

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

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

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

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

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

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

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

Lack Of Employment Increases Probability of Divorce

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

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

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

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

Gray Divorces Are Increasing!

A recent development is that in the last several years I have represented many individuals in their fifties and even sixties who are commencing divorces after many years of marriage. Twenty years ago I rarely ever represented fifty plus aged people in divorces.

Many experts are writing about the reasons for this reality. I wish to share an interesting article from the Huffington Post:

The 5 Big Reasons Why Couples Divorce After Decades Of Marriage
Here’s what to do before it’s too late.
Mar 20, 2016
Linda Melone Next Avenue
SPECIAL FROM Next Avenue
By Linda Melone
If you or someone you know recently divorced after 20 or more years together, you’re not alone. Splitting up later in life, sometimes called “gray divorce,” is on the upswing. In 2010, one in four divorces occurred among people age 50 and above and the 50-plus set was more than twice as likely to be divorced than in 1990, according to the National Center for Family and Marriage Research at Bowling Green State University in Ohio.

But why do couples split up after so much time together? And how can you prevent this from happening in your marriage?

There are five big reasons why couples divorce after decades of marriage:
1. They Grow Apart
The process that leads to gray divorce isn’t typically a sudden event or trigger, says Stan Tatkin, author of Wired For Love. Rather, it often happens slowly over time. “It’s like an unbreakable plate you drop repeatedly,” he says. “The relationship develops microcracks inside the structure you can’t see. Then it finally reaches a critical mass and shatters.”

Hormonal changes that arise with age can cause significant shifts in sex drive.

— Jessica O’Reilly, author of ‘The New Sex Bible’

It’s a reason many couples that split late in life say they’ve simply grown apart. This usually comes as a shock to close friends and family, such as when Al and Tipper Gore separated in 2010 after 40 years of marriage.

An undercurrent of dissatisfaction can happen for a number of reasons, but several dominant themes crop up regularly, says Tatkin. “Often one person — usually the woman — feels she’s given up too much. She may have put aside her career as she raised the children. She feels the wear and tear of the relationship because it wasn’t collaborative.”

2. Their Age
Other times age is a factor. A big age difference that was not an issue at the beginning of a relationship may become a problem later in life, Tatkin says. Or people may hit middle-age and crave a reboot.

Tatkin explains that people go through physiological and biological “brain upgrades” at certain times in their lives, including at age 15 and again at 40. “Every time you experience one you want to go back [in time],” he says. Starting a relationship with a younger person satisfies this urge for some people.

3. They’re Bored
Steve Siebold, a psychological performance and mental toughness coach and author of 177 Mental Toughness Secrets of The World Class, cites boredom as a factor. “Being around the same person 24/7, depending on the relationship, can lead to boredom,” he says. In other cases, people stop trying. “You work hard, play hard and take care of business, but you’ve stopped being the attentive, attractive spouse. You’ve allowed yourself to become complacent.”

4. Their Money Issues
Differences in spending habits and financial difficulties may finally come to a head cause a break-up. One spouse may be a big spender while the other likes to save, Siebold says. “The kids’ activities, expenses and college funds eat the family’s discretionary cash and you’re deep in debt,” he notes.

5. Sex
Sexual incompatibility can become more pronounced, says Jessica O’Reilly, author of The New Sex Bible and Astroglide’s resident sexologist. “Hormonal changes that arise with age can cause significant shifts in sex drive. And though every couple of every age experiences differentials in desire, these can become more pronounced with age.”

Couples who may be heading down the path to divorce can take steps to pull themselves back with these five tips:

1. Put the Relationship First
You should be about protecting each other in harsh environments and have each other’s back, says Tatkin. “You must become experts for each other and protect each other in private and public — and never threaten the relationship.” In addition, Tatkin says, couples should have a strong sense of why they’re together. “Know the purpose that you serve as a couple,” he says.

2. Take Care of Yourself
Gaining weight, not exercising and dressing slovenly sends a message to your spouse that you don’t care anymore, says Siebold. “Try cutting the carbs, trimming the fat and heading to the gym,” he advises.

3. Assess Your Role in the Problem
Before you give up on your marriage, look in the mirror, says Siebold. “If there’s a boring person staring back at you, you may be the problem,” he notes.

And if that is the case, Siebold suggests making a decision to create some excitement in your life. Plan a new adventure together, start a new business, learn a language or develop a new skill together. These activities create new stories and may reignite your passion.

4. Talk About Sex
Couples who talk about their sexual expectations, changing needs and vulnerabilities can manage their differences, O’Reilly says. “Communication is essential. As your body changes you need to discuss what feels good both physically and emotionally to cultivate intimacy,” she adds.

5. Talk About Everything Else, Too
Lastly, Tatkin says you both need to tell each other everything. That’s the only way to work out your problems.

 

My experience is that a reality is that people change and often grow apart and have different interests after their children are grown and move on with their individual new lives. It appears people also often have less patience and are unwilling to live under the control of a bossy financially or emotionally controlling spouse realizing they are not going to live forever and want to pursue what they deem satisfying and rewarding. They no longer focus on the children’s needs, but their own, which now have changed.

The reality is it is important to retain an experienced divorce attorney in a grey divorce as often times your best earning years are behind you and it is important to obtain a fair and equitable property settlement and sometimes spousal maintenance to secure your financial future. Dividing pensions, retirement assets, or businesses and real estate can often be complicated. Promptly seek an experienced divorce attorney if you find yourself in this now common scenario.

Jeff from Arrigoni Law has 33 years experience as an attorney and has been practicing exclusively in family law, divorce, and mediation for over 27 years and will work hard to protect your rights and secure an equitable fair settlement.

Significant Other’s Can Impact Custody Decisions

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

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

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

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

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

 

 

 

Moving On After A Marriage Ends

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Custody Law Factors Starting August 1, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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