Phyl Bean Law
Family Law Attorney
Custody and parenting time (formerly called visitation) can become an issue regardless of whether the parents were ever married to each other. If the parties were never married, paternity must be proven, but otherwise, the same standards of “best interests of the children” apply in initial custody determinations. Once a custody determination is made, a party must prove a number of factors before custody can be changed.
“Physical custody” means where the child resides, and can be sole or joint. “Legal custody” means the right to make decisions in significant areas regarding the child’s upbringing, such as education, health care, and religious training.
If two people who are not married to each other have a child together, that child’s paternity may be an issue for the court to decide. Evidence of paternity includes DNA testing, the father’s written acknowledgement of paternity filed with the state registrar, the father’s consent to being named on the birth certificate, and the father receiving the child into his home and openly acknowledging the child as his biological child. In cases in which the mother and father are not married to each other, paternity must be established before a man who claims to be the biological father can obtain custody or parenting time.
Property Division can be one of the more complicated factors in a dissolution action. All real estate or personal property acquired by either of the parties during the marriage is presumed to be marital (joint) property, unless it can be shown to be non-marital property. Non-marital property is real estate or personal property, which was acquired by either spouse before, during, or after the date of marriage, which (a) was acquired as a gift, bequest, devise or inheritance made by a third party to one, but not the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of non-marital property or (c) is one of a few other exceptions.
Divorce, or “dissolution” as it is called in Minnesota, is the procedure by which a marriage is dissolved and the parties become single and are free to date, and even remarry, if they choose. Dissolution in Minnesota is “no fault.” This means that neither party has to prove that the other did anything wrong to cause the failure of the marriage. In order to have a court dissolve a marriage, the only thing a party must prove is that the marriage is “irretrievably broken.”
Divorces happen in a wide spectrum of length, difficulty and expense. A couple who is amicable, don’t own real estate, don’t have children together, have relatively comparable incomes, and have reached an agreement about the division of their assets and debts can get divorced fairly quickly and spend a lot less money than many other couples.
Disagreements about custody, parenting time, spousal maintenance, property division, and/or orders for protection will almost always extend the timetable during which a divorce will be granted. Because they require more attorney time, these disputes will also generally increase the total cost of divorce.
An action for adoption may be brought under many different circumstances, including, but not limited to, a step-parent or relative adoption, agency adoption, direct placement adoption, foster parent adoption and adoption of an adult. The proceedings vary, depending on the type of adoption involved.
Child support is usually paid by one parent. However, that does not mean that each and every penny of child support must be spent directly on the child or children and accounted for. Child support is intended to ease the financial burden of taking care of children, and to decrease the possibility of gross disparity between lifestyles at each parents’ residence.
Alimony (called “spousal maintenance” in Minnesota) is paid by the spouse with the higher income or greater number of assets to the other spouse. Spousal maintenance is not a guarantee or entitlement, but depends on a number of factors, including the length of marriage, the disparity in resources between the parties, and the needs of the parties and the assets available to satisfy those needs.
Divorce, as everyone knows, is hard on typical kids. But it is especially difficult for children with special needs. You can make the process a little easier on yourself and your kids by having an attorney who is knowledgeable about the process of divorce as it affects special needs families and children.
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Orders for Protection are generally sought in cases in which a person fears for his or her safety. These issues can involve a person or persons with whom he or she has a close relationship, such as a married couple, or a couple who is living together.
Name changes may be requested for a number of different reasons and in different types of actions, including adoption, dissolution, and as a stand-alone for personal reasons. Not everyone can obtain a change of name. For instance, the court may not grant a change of name if the court finds that a name change was requested in order to defraud or may cause injury to a person or may compromise the public safety.
Post-decree matters include such matters as contempt for failure to abide by a court order and requests to modify custody, parenting time, spousal maintenance and child support. Whether or not the court will agree to even hear argument on the request depends on a number of factors, including the wording of the decree, the length of time since the decree was entered, the changes that have occurred since the decree was entered, and the type of change requested.