Children are often the most complicating factor in a divorce.  In deciding child custody issues there are three primary decisions spouses must make – legal custody, physical custody, and parenting time.

How these are divided between parents is often complicated as parents struggle with feelings of guilt over the disruption of the children’s family unit, feeling of loss over facing limiting contact time with the children, and the financial challenges which may and often do limit opportunities for the children.  The court uses the Best Interests of the Child Standard as set forth in Minnesota law to determine legal and physical custody as well as parenting time.

If there is an area, however, where the decisions are best made by the spouses and through cooperation, it is child custody.  Even in a contested divorce, the court will encourage or may order the parties to engage in alternative dispute resolution to try to resolve these matters.

Though there are several types of alternative dispute resolution, the most commonly used is mediation.  The mediation process allows parents to explore options highly tailored to their family’s unique needs and address sensitive issues enabling spouses to move toward resolution.

When you and your spouse are in agreement to divorce, but the property issues and/or custody issues are complicated, you should seriously consider an attorney.

What complicates an uncontested divorce?

Property

In a marriage where there is personal or real property, retaining an attorney may save you time and money. Not all property, whether real or personal, may be marital and in such capacity subject to division in the divorce. Marital property – as are marital debts – is to be divided equitably between spouses. Property owned prior to the marriage may be considered pre-marital and not a marital asset subject to division. In other cases, property acquired during the marriage, may be non-marital and similarly not a marital asset subject to division. Even more complicated is property that is valued both as non-marital and marital.

Martial Property
All property acquired during the marriage, by either spouse, is presumed marital. Whether the title is held individually or jointly in a form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.

Non-Marital Property
The presumption that property acquired during the marriage is marital is rebutted by showing it is non-marital. Non-marital property is property that is:

1. Acquired as a gift, bequest, devise or inheritance made by a third-party to one but not the other spouse.
2. Acquired before the marriage.
3. Acquired after the valuation date in the dissolution proceeding.
4. Excluded by a valid anti-nuptial agreement.

Documentation to prove the property meets one or more of the above criteria is essential to successfully rebut the presumption.

Retirement Accounts

Division and distribution of retirement accounts can also complicate a divorce. Retirement accounts are another example of property that may be a combination of pre-marital and marital. Additionally, while you and your spouse may be in agreement as to how to divide the asset, distribution may be a whole different matter. QDROs are often time consuming necessities of retirement distribution. An attorney can help you prepare the proper documents in order to enforce the division agreement.

Insurance

It is common for one spouse to provide the medical and dental coverage for both spouses during the marriage. This coverage changes in a divorce and is often an important financial consideration for the spouse who must find independent health and dental insurance.

Spousal Maintenance or Alimony

Spousal Maintenance, sometimes referred to as alimony, is an obligation of continued financial support to your ex-spouse. An attorney may be necessary to advise you whether you may have this obligation or are eligible to receive spousal maintenance.

Spousal maintenance, sometimes referred to as alimony, can be temporary or permanent. When temporary, maintenance will conclude after a specific period of time. The duration of temporary maintenance is specific to the facts and circumstances of your case. The period of time is often set forth in the decree and is generally for a period of time long enough to enable the receiving spouse to rebuild his/her financial situation.

Permanent maintenance is ongoing maintenance that typically ends upon the death of one party or remarriage of the receiving party,

The following factors will be considered by the court in deciding the issue of spousal maintenance, without regard to marital misconduct. These factors are as set forth in Minnesota Statute 518.552, Subd. 2 and are listed below.

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;

(c) the standard of living established during the marriage;

(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

Spousal Maintenance can be Modified Post-Decree. If there is a change of circumstances, by either party, spousal maintenance may be modified. It is possible to may spousal maintenance non-modifable. It is also possible for both parties to permanently waive spousal maintenance.

Child Custody

Children are often the most complicating factor in a divorce. In deciding child custody issues there are three primary decisions spouses must make – legal custody, physical custody, and parenting time.

How these are divided between parents is often complicated as parents struggle with feelings of guilt over the disruption of the children’s family unit, feeling of loss over facing limiting contact time with the children, and the financial challenges which may and often do limit opportunities for the children. The court uses the Best Interests of the Child Standard as set forth in Minnesota law to determine legal and physical custody as well as parenting time.

If there is an area, however, where the decisions are best made by the spouses and through cooperation, it is child custody. Even in a contested divorce, the court will encourage or may order the parties to engage in alternative dispute resolution to try to resolve these matters.

Though there are several types of alternative dispute resolution, the most commonly used is mediation. The mediation process allows parents to explore options highly tailored to their family’s unique needs and address sensitive issues enabling spouses to move toward resolution.

Legal and Physical Custody

Legal Custody and Physical Custody are terms defined by Minnesota Statute. Legal custody means the right to determine the child’s upbringing, including education, health care, and religious training. When legal custody is joint, it means that both parents have equal rights and responsibilities in making these major decisions. [Minnesota Statute 518.003 Subd. 3 (a),(b)].

Physical Custody means the routine daily care and control and the residence of the child. Joint physical custody means that the routine daily care and control as well as the residence of the child is shared by the parties. [Minnesota Statute 518.003 Subd. 3 (c), (d)].

Once legal and physical custody are determined, modification can only proceed under specific circumstances set forth by statute. The court can only change custody by agreement of both parties; the custodial parent has allowed the child to be integrated into the home of the other parent, or the present environment endangers the child’s physical or emotional health or growth. Therefore, careful thought and consideration must be made when initially determining custody.

Parenting Time

The amount of time the child spends with each parent is determined by parenting time. The amount of parenting time is one of the considerations in determining child support. Parenting time can be modified by the best interests of the child standard; however, if the modification is too extreme, a higher standard may be necessary.

There are several other aspects to parenting time including a holiday schedule, vacations, phone contact, and other terms and conditions specific to your circumstances.

Best Interests of the Child

Minnesota Statute 518.17, Subd. 1 (a) (1-13) outlines the best interests standard used by courts when determining physical and legal custody. The Standards are listed below.

(a) “The best interests of the child” means all relevant factors to be considered and evaluated by the court including:
(1) the wishes of the child’s parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child’s primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;
(6) the child’s adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;
(11) the child’s cultural background;
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.