Minnesota does recognize spousal maintenance. They look at several factors. They will look at age, health, educational background of the party seeking maintenance, the standard of living established during the marriage, and whether one party supported the other party’s career to their own career detriment. They will look at whether there have been decisions to stay home with the children, and whether there are special needs children that requires a parent to continue to stay home. An important factor is the standard of living established during the marriage, and whether a party is able to meet the standard of living upon divorce. If not, then the court starts to look at the issue of amount and duration. The amount is to be what would be necessary to support that person. But, within the amount, they will also turn to the party who is paying spousal maintenance and verify if they have the ability to pay. Therefore, you first must establish need and then ability.
From Jane’s interview for the Masters of Family Law series on ReelLawyers.com.
Ability is going to be deduced from the party’s income, assets that are available, and the standard of living. Duration is then determined based on the length of the marriage, age of the parties, how long somebody has been out of the labor market, whether they are able to return to work, how soon they can return, and whether they need education or training to get back into the labor market. Moreover, if they can get back into the labor market, is there still an ongoing need for maintenance?
How Is The Amount Of Spousal Maintenance Determined Or Calculated In Minnesota?
Spousal maintenance is based on one party’s need and standard of living established during the marriage. The standard of living during the marriage is determined by asking by asking such things as: Are you shopping at the high-end stores or at the low-end stores? Are you taking a lot of vacations? Do you have a modest house or a huge house? Of course, one of the factors that has come into play these days is that there are many families that are living beyond their means, and so, the court must sort through that. Once there is an established actual need, they will look at the other party’s ability to pay, and the level they are able to pay maintenance. Nothing is concrete with regard to maintenance. It is a difficult issue because it takes into consideration many factors.
Can The Amount Of Spousal Maintenance Ever Be Changed In Minnesota? If So, What Circumstances Could Call For Such A Change?
In Minnesota, whether the amount of spousal maintenance can be changed will depend upon the circumstances surrounding the requested change and initial agreement. Sometimes, when parties reach an agreement on spousal maintenance, they enter a Karon Waiver. A Karon Waiver declares what the agreed amount of spousal maintenance is at that moment, its duration, and that someone is paying for that certainty. It is a contract. So, when you enter into that agreement, it usually states that you cannot modify it. If you do not have a Karon Waiver, or the matter goes to trial, then you have a chance to modify the maintenance. To be able to modify maintenance, there must be a significant change of circumstances since the last order was issued. For instance, if one party makes significantly more money out in the workforce, a significant change of circumstances may be considered.
If the party who is paying maintenance loses their job through no fault of their own, then that person can ask for a modification based on a significant change of circumstances. Significant change of circumstances means that the original or last order is no longer fair to both parties. It is not uncommon to take steps to get a reduction or change in maintenance.
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Normally, when you enter into an agreement on spousal maintenance, or even when the court imposes a spousal maintenance obligation, it will terminate upon remarriage of the party receiving or death of the party paying. Those are the kinds of things that can automatically occur and terminate the spousal maintenance.
What Are Factors That Could Affect How Property Assets And Debts Are Divided In A Divorce In Minnesota?
Since Minnesota is a no-fault state that means the reason for the divorce is not considered in addressing the division of assets and debts. There is to be no consideration as to whether someone has made bad decisions during the marriage in regard to debt and assets. If someone has dissipated assets in anticipation of a marriage, the court will look at that. They will look at the assets that were acquired during the marriage, and those marital assets will be divided equitably. The division of assets becomes important when somebody has inherited money or brought money into a marriage. That is considered non-marital. Non-marital assets are not subject to division except under extraordinary circumstances. The person who is making a claim for a non-marital asset has the responsibility and obligation to trace and show what the asset was worth when they got married or at the time of receipt and what it is currently worth.
Length of marriage is not going to make a difference in division of assets and debts unless you have a prenuptial agreement that states those conditions. But assuming there is no prenup, Minnesota is considered an equitable division state. Equitable division basically means that both parties should be walking away with assets that are essentially equal in amount and/or value if there are any.
Under What Circumstances Could Custody Or Visitation Orders Be Changed In Minnesota?
Custody can be changed in several ways. It is very difficult to change physical custody. There is a two-step process if you want to change physical custody. You first must bring an action alleging that there is a need for a change in custody. The court will look at whether you have given them a case in which to move forward. There are a number of standards that you can argue, such as the child has come to live with you for a significant period of time, and he or she is now integrated into your home. Integration means the child moved out of the home of the other parent, changed schools, and has new friends. There is a modification that can be made based upon those circumstances.
If there is a consent, such as the parties agree, then a modification is readily possible. If one party has been interfering in the other party’s relationship or time with the child, that can be a basis as well for a modification. Another circumstance that the court looks at is whether the child’s current environment is an endangerment or impairment to their physical or emotional wellbeing and development. They will look at whether the child is failing in school, and whether the parent is neglecting the child’s physical or emotional needs. The current environment is harming the child’s emotional or physical wellbeing or development. This is balanced against the assumption that there is a harm to the child by moving their home. That harm must be outweighed by the benefit of changing that child’s environment.
When parenting orders, not custody modifications are changed, the court is to then use the best interest of the child standard. The court may also alter parenting time according to the child’s needs and tweak the parenting time arrangement as the child ages. And so, the court tries to use a lower standard of the best interests as opposed to the modification of custody. The involvement level of each parent is significant in changing custody and parenting time.
Do I Have To Have The Same Attorney Who Handled My Divorce Also Assist Me With The Modification Or Can I Hire Your Firm?
You do not have to have the same attorney handle your post-decree matters that handled your divorce. You want to look for a firm that does post-decree matters because there are different standards that are applicable. You need to look for somebody who has experience, like my firm.
Where Does The Modification Of Child Custody, Visitation, Or Support Order Need To Be Filed? Does It Have To Be In The Same County Where The Divorce Was Granted?
The modification of child custody, visitation, or support order must be filed in the same county where the divorce was granted, unless both parties have moved out of the county. If that is the case, then it can be filed in the county in which the parties live. If the custodial parent has moved out, and there are more connections to a different county, the parties need to stipulate to move the matter to the new county. If there is no agreement, a Change of Venue may be sought from the Court. You start with the county in which the divorce was determined and look at the circumstances around the current situation to make the decision about the proper county. The matter then would be brought to the court, and the court weighs in on what county is going to have the more significant connections to the ongoing matter.
What Is The Process To Actually File For A Petition To Modify A Decree?
Property settlements in divorces are not modifiable. Absence fraud upon the Court, there is nothing you can do about altering a property settlement unless it is an enforcement issue. To modify a decree, you bring a post-decree modification motion. When you bring in a motion, you are moving the court or asking the court for some change. Your motion must be specific about what you seek. The motion is accompanied with either an affidavit or declaration that sets out the facts as to why you believe the original decree is no longer fair or needs to be modified. The court will then look at it. If it is a maintenance or child support modification request, these can decided without a further hearing. There are times the Court will schedule an evidentiary hearing.
As mentioned above, if your request is for a modification of a custody matter, the court first looks at whether you have a basic case in which to proceed ahead. If you do, they will schedule it for a trial. It is not easy to modify custody, and it is not easy to get a custody modification trial.
Can A Request Or Petition To Modify A Decree For Custody Or Support Be Challenged Or Opposed By The Other Party?
A request or petition to modify a decree for custody or support can be challenged or opposed. When someone brings a motion to modify, you may respond to the issues raised and counter it with your own issues. You are restricted by time deadlines to raise new issues. Your response would include together your own affidavit or declaration setting out the facts as you know them. Of course, you should be working with your attorney in drafting that and fine-tuning the points that the court is going to be looking for in making that modification.
Why Is It The Best Idea To Retain An Attorney To Handle Any Sort Of Request Or Petition To Modify A Divorce Decree Or Custody Matter Versus Trying To Do It Alone?
Modifying a divorce decree is not something that the court wants to see. Because of that, the law makes it challenging to modify decisions or agreements already made. It is not simple to modify a divorce decree. There are standards that are critical which must be met to modify or oppose a modification. Not only are you looking at statutes, which guide the attorneys, you are also looking at what the courts have decided in the past. Usually, precedent can be significant in shaping how the court addresses a modification. To me, it is critical to have an attorney that understands the post-decree process and the standards that are necessary for addressing the issues that are before it.
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As Far As The Courts Go In Minnesota And In Your Area Specifically, Is Everything Back Open And Running As Usual If I File A Petition? Will I Have An In-Person Hearing?
At this time, most things through the court are being done via remote hearings. These are done through video calls. The Courts utilize Zoom in such matters. The attorneys and clients appear through Zoom. The courts carefully weigh how each matter is to be heard. They continue to assess the safety of in person hearings. If there are emergency matters, the courts are working individually on each case to figure out how best to handle those.
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