Family law attorneys and courts across the country have been working hard to help families navigate these ever-uncertain times. In particular, the vaccination of children poses unique legal challenges. What happens when two parents with joint legal custody disagree on whether a child should receive the COVID-19 vaccination? To best answer that question, we will explore several factors that Minnesota courts may look to in determining what is in the child’s best interest.
Co-parenting under “normal” circumstances can prove to be challenging enough, but with the ongoing COVID-19 pandemic thrown in the mix, challenges abound. Because there’s so much to talk about when it comes to co-parenting in the middle of a pandemic, we’re doing a two-part series of blog posts. Read our first 5 tips for COVID co-parenting, below:
The award of permanent spousal maintenance does not mean it will be paid forever. It means until the payor’s death, the recipient’s remarriage or a substantial change in the financial circumstances that makes the original award unreasonable and unfair. The payor’s retirement can be a substantial change in the circumstances. See Minnesota Statutes 518A.39.
Unless the divorce decree specifically identifies what happens at retirement, permanent spousal maintenance does not automatically end at the payor’s retirement. If the divorce decree does not specify what happens at retirement, at that time the payor can bring a motion to modify spousal maintenance and the obligation may end, be modified or remain unchanged. If the original award was permanent maintenance, it is the payor’s burden to establish the substantial change in circumstances.
In the past the usual age of retirement was 65. Except for a few professions, today there is no mandatory retirement age. If contested, when the spousal maintenance payor retires he or she has the burden to show the decision to retire was in good faith and not for the purpose of avoiding the maintenance obligation. The closer the payor is to age 65, the court is more likely to determine the decision to retire was made in good faith. However, there are circumstances when retiring before age 65 is appropriate. If the spousal maintenance recipient claims the payor is retiring in bad faith, the court will consider a number of factors:
The payor’s health;
The payor’s employment history;
The parties’ plans and expectations for early retirement before the divorce;
The employer’s policies and industry standards relating to the age of retirement;
The payor’s financial circumstances; and,
All other reasons given to retire.
The process is complicated because typically before bringing a motion, the payor needs to actually retire and the decision to retire maybe connected to whether the spousal maintenance obligation will be changed. Before deciding to retire or announcing your retirement, it is wise to consult with an attorney. If you are the maintenance recipient and receive notice of the payor’s intention to retire, it is also appropriate to promptly communicate with experienced legal counsel.
If the Court determines the payor was acting in good faith, the court looks at the parties’ incomes, assets and expenses. If both parties have post retirement income that provides for their reasonable expenses, spousal maintenance should end. However, the Minnesota Supreme Court recently decided, even at the age of retirement the maintenance recipient is not required to use the retirement assets they were awarded in the divorce decree to support themselves at retirement. Many lawyers do not understand this decision.
Minnesota case law provides the maintenance recipient does not get a “second bite of the apple”. In other words, the payor is not required to pay spousal maintenance from marital assets previously divided in the original divorce decree. However, income earned from the assets and retirement accounts awarded in the original divorce decree can be considered when evaluating the payor’s ability to pay and the recipient’s need for maintenance.
When the court evaluates the payor’s ability to pay maintenance, it considers the assets acquired by the payor after the divorce and the payor’s pre-marital assets that were not considered in the original divorce settlement. This means if the maintenance payor is financially successful after the divorce, he or she may have a more difficult argument establishing a substantial change in the circumstances that makes the original maintenance award unreasonable and unfair.
In assessing the spousal maintenance need, the court must consider all the income from the requesting spouse. The spouse seeking maintenance is not required to sell-off assets to provide for his or her needs. However, the income or return generated from the recipient’s estate will be considered. In a recent Minnesota Supreme Court case, the Court ruled that the recipient of maintenance was required to move her cash and invest in a more “income producing” investment.
Not surprisingly, the decision to retire and request a change in spousal maintenance can result in litigation. To avoid uncertainty and surprise at retirement, it would be helpful to agree what happens to spousal maintenance when the initial divorce terms are decided. However, with the emotions at the time of divorce, this negotiation can be difficult.
In the future, we expect legislative changes to the spousal maintenance statute and case law that will clarify what is considered when the payor seeks to modify spousal maintenance at retirement.
Modification of spousal maintenance is difficult, subjective and the related law is constantly changing. It also makes a difference if the original spousal maintenance award was permanent, permanent with step reductions or temporary. If you are involved in a spousal maintenance modification case, we recommend consulting with an experienced family law attorney at Henningson & Snoxell.
Minnesota’s new child support law that went into effect in August 2018 addresses basic child support, childcare support and medical support, just like the old law did. Just like the old law, the new law does not address many children’s expenses such as extracurriculars, school expenses and phones which would seem to be “shared” expenses that both parents should contribute towards their cost.
Minnesota Family Law (Custody and/or Divorce) cases generally require the parties to participate in Alternative Dispute Resolution or ADR. The most widely used forms of ADR are Mediation and Early Neutral Evaluation.
Mediation is a process where the parties, along with their attorneys, meet with a third-party neutral Mediator to assist with resolving their differences. Those differences can include such things as who has custody, amount of parenting time, division of property and financial support.
The Mediator’s role is to assist the parties in keeping communication flowing –focusing on the issues and brainstorming ideas for settlement. The Mediation can take place with all the parties in the same room, or by caucus – where the mediator goes back and forth between the parties in separate rooms. Mediators are neutral parties – they do not represent either side and do not provide legal advice to either party, and they do not have any decision-making authority.
Early Neutral Evaluation, ENE, is a form of Alternative Dispute Resolution. The parties are given a neutral opinion of the strengths and weaknesses of their case. The process usually starts at the beginning of a divorce or custody case. This gets the parties talking about settlement early in the process before people get entrenched in their positions. However, early neutral evaluation can be effective at any point during the case.
There are two separate types of Early Neutral Evaluations. When it relates to evaluating custody and parenting time, a Social Early Neutral Evaluation, or SENE, is conducted. The early neutral evaluation for asset division and financial support is called a Financial Early Neutral Evaluation, or FENE.
For an SENE, two evaluators, typically a male and female, are assigned to the case. A good SENE session should last at least three hours and it is possible to need a follow up session. The process begins with the evaluators explaining the confidentiality requirements, and the way the evaluation will be conducted. It is very important to tell the evaluators all the information they ask for. This needs to be complete and accurate information for them to formulate their best opinions. If information is held back, the evaluator’s recommendations may not be appropriate.
Both parties make presentations to the evaluators. The evaluators leave the room and discuss their impressions of the case. They reconvene and give their feedback and thoughts about the likely outcome of the case. At this point, you can ask the evaluators questions about their recommendations and get any necessary clarification.
Once the evaluators provide their recommendations, you will privately discuss your thoughts about what has been recommended with your attorney. At that time, you will have three options: 1) agree with the recommendations 2) agree with some of the recommendations and propose some changes, and 3) disagree completely and walk away from the discussions.
You will again reconvene with the group and discuss each parties position regarding the recommendations. This starts negotiation of the terms of a settlement agreement. You may be able to reach a full agreement on all issues. Or, there may simply be a temporary agreement or a partial agreement requiring further negotiations.
The FENE process is also evaluative, but the process is quite different. Only one evaluator is chosen. The evaluators are experienced family law attorneys and financial neutrals who have worked as expert witnesses on divorce cases.
During the FENE, everyone typically meets in the same room. The discussion will focus on determining assets and debts, the division of those assets and debts; the evaluation will also discuss issues of financial support such as child support or spousal maintenance. If the parties cannot agree on these items, the evaluator will give the parties an opinion on the likely outcome should the matter would go to court.
The evaluator’s opinions regarding the likely outcome at court help to move the settlement discussions along. It is common for parties to be convinced that their position is the right one. The evaluator helps to show the parties that there may be shortcomings in their case and gives the parties a realistic option for settlement negotiations when they cannot agree.
Having a skilled attorney represent you during Alternative Dispute Resolution is crucial. Henningson & Snoxell’s Family Law attorneys have the compassion and the mediation skills to bring about a timely and favorable solution for you and your children. They know how the process works and how to effectively prepare you and represent you through the process. If you have questions about divorce or any other family matter, please contact our office to set up a consultation.
Divorce can be a complex process and scheduling an initial consult is the first step. The most common question I get after scheduling an initial consult is, “what should I bring with me?” My response is “as much as possible.” I encourage potential clients to bring information that could be relative to their case. This includes documents about assets, debt, income, as well as any documents pertaining to their children, especially if they have special needs, so we can have a thorough meeting about to the process.
Below is a list of helpful documents to start the process.
Legal documents regarding these proceedings, including any Order for Protection or Harassment documents;
Paycheck stubs for you and your spouse from the last six months
Tax returns for the last five years with all schedules and attachments;
Deeds, Abstracts or Torrens Certificates showing legal description of all real property, Mortgage, contract for deed, or home improvement loan documents and property tax assessment statement for the last two years;
Stock and life insurance documents and most recent retirement plan records showing plan value;
Appraisals of any real estate, assets or business interests;
If you have filed bankruptcy, all legal documents;
The initial consult with your attorney is first step in the process. While helpful, it is not necessary to bring all of these documents with you. In many cases, most do not have access to their spouse’s information; that is fine. Your attorney is your partner is in this process and will help you get the information you need so you can make decisions and understand the entire picture.
At Henningson & Snoxell, Ltd., we have experienced and compassionate family law attorneys. Kelly Eull is an attorney in the firm’s Family Law Department. If you have questions about divorce or any other family law matter, please contact our office to set up a consult.
I did not plan to be a family law attorney. Now, after 38 years of focusing my practice in family law, I am not sure I could have done anything else. I started my legal career at a small firm in Anoka. No one at the time wanted to do family law. Being the newest attorney, I was given all the divorce work.
As family law attorneys, we work with clients who may be at the lowest point in their life. Our clients can be afraid, angry, stressed, concerned, frustrated, overwhelmed, vengeful, happy and relieved; and, their outlook may change daily. We are impacted and sensitive to the emotional circumstances of our clients and their children. However, most family law attorneys are not therapists, and our job as attorneys is to represent the client. It is the attorney’s responsibility to tell the client what they need to hear, not what they want to hear – it is to counsel, share the law and use our experience.
It is critical to listen and hear the client. Listening means giving the client the time to tell their story, ask and answer questions and share the details. Hearing what your client has to say is even more important and, takes practice and patience. What do you say to a client that has just opened their heart and soul to you, shared their concerns and fears, and now needs a family law attorney? You say: “I hear you and with 38 years of experience I can help you.” The most important case I have is the file I am working on at that moment, and the client should know it.
The client has a significant role in the attorney-client relationship. For the attorney to be effective and efficient, the client must timely share the information and documents we need. I insist that my clients are honest, respectful and behave. I understand the client is the boss; however, the clients MUST listen to the attorney, and not the other party or, worse yet, partially informed friends and family.
Do not involve your kids. Sometimes our representation involves protecting children. These cases are difficult and important. However, if the case is really about the parents, including children in the process or making them the issue is unfortunate. Fighting over kids for a relatively short period of time before they become of legal age, can have a dramatic impact on them and can affect your relationship for the rest your lives. This applies to adult children as well. Adult children should not be your friend when getting divorced.
Be an advocate for your client. This means zealously representing them. It means being prepared and having your client prepared. It means, if possible, seeking an appropriate, timely and efficient resolution. It means not getting in the way of the parties coming to an agreement. It means, if necessary going to trial.
Sometimes nice guys finish last. When we litigate, there are winners and losers; sometimes there are two losers. The cost of a prolonged divorce involves more than a ridiculous amount of attorney’s fees and expert costs. A lengthy divorce takes a toll on your emotions and health. With no-fault divorce you are not going to get even or feel vindicated at the end of the process. The parties, attorneys and the courts should all be working toward an appropriate settlement. As a Judge recently told a colleague, “Good family law attorneys settle cases.”
I have said to my clients a million times “Nobody on this earth is going to take care of you like you can take care of yourself.” The best way to get a good result and timely end to your divorce or family court proceeding, is to pay attention, cooperate and be reasonable.
At Henningson & Snoxell, Ltd., we have experienced and compassionate family law attorneys. Jeff Berg is a Shareholder, the Chair of the firm’s Family Law Department, has repeatedly been selected as a Super Lawyer® and is AV® rated. If you have questions about divorce or any other family matter, please contact our office to set up a consultation.