Who is Entitled to the Engagement Ring?

Posted on February 6, 2012

The ownership of an engagement ring depends upon whether an engagement is followed by a wedding.  Whatever happens, the ring will be non-marital property.

Termination of Engagement

In Benassi v. Back & Neck Pain Clinic, Inc., a former employee brought a sexual harassment claim against her former employer/fiancé.  In response, the former employer/fiancé filed a counterclaim for the return of a $24,000 engagement ring.  The Benassi Minnesota Court tackled the issue of “who is entitled to the engagement ring.”

Generally, engagement rings are considered to be conditional gifts given in contemplation of marriage.  If there is no marriage, there is no gift.  This may seem unfair, especially considering that facts surrounding the break-up of an engagement.  Considering Benassi, the woman claimed her fiancé exhibited “deeply disturbing, dangerous and highly insulting behavior.”  The Benassi woman alleged that she was not at fault for the break-up of her engagement thereby justifying her ability to keep the expensive engagement ring.  However, the Benassi Court held that since the Minnesota Legislature adopted a no-fault marriage dissolution law on the grounds of public policy, it is consistent to adopt a no-fault approach to the return of an engagement ring.  Despite his egregious behavior, the woman was not entitled to keep the engagement ring.

Dissolution of Marriage

Once the parties are married, Minnesota Courts treat an engagement ring in a different manner.  Although the parties are married, the engagement ring is not marital property.  Marriage satisfies the condition of the gift, and the woman is entitled to keep her engagement ring.  In Linderman v. Linderman, the husband argued that his wife’s engagement ring was his non-marital property because it was purchased with his non-marital income prior to marriage.  The Minnesota Court’s disagreed and held that the wife could keep the engagement ring because it was her non-marital property.  Under this reasoning, the husband gave his wife the ring in contemplation of the marriage—his wife accepted the ring—a marriage followed—therefore, his wife is entitled to keep the engagement ring as non-marital property (even if they later divorce).

Minnesota Family Law Attorneys

At Clausen & Hassan, our Minnesota Family Law Attorneys have experience with non-marital property and marital property issues. If you have questions about your specific situation, contact us today for your free consultation.

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Determining Income of the Self-Employed Spouse

Posted on February 2, 2012

Defining the net income of a self-employed spouse is not a simple task.  Often, a divorcing party does not report his/her full income when self-employed. Likewise, income tax returns are not the most reliable source of financial information to base a fair division of marital property or an adequate child support award.  Obtaining the financial records of a self-employed spouse in a tightly-held business is a complicated and lengthy process.

Tips for Determining Quantifiable Net Income of the Self-Employed

  1. Gather all personal checkbooks and banking transactions for the last four (4) years while the parties were together.
  2. Break down the expenditures into categories to determine how the money was disbursed within the household and the business.
  3. Isolate personal expenses such as mortgage, taxes, food, utilities, car expenses, and clothing, home improvements, dinners out, and vacations.
  4. Find expenses that a self-employed spouse spent for personal items such as haircuts, lunch, and general ‘pocket money.’
  5.  Determine the total disbursement of personal expenses and legitimate business expenses within the business.
  6. Compare what was reported as income on the joint tax returns with what was actually spent on personal items, thus revealing hidden cash or income.

Other income related considerations

  1. Many professionals own their own office building and the business pays the rent. Depreciation will offset any income, thereby increasing the value of the building at no personal expense. This tax shelter should be added to calculate net income.
  2. The self-employed may use low-interest loans rather than taking actual income. This financial ‘perk’ should be considered in net income calculations.
  3. Some self-employed spouses increase their financial debt in order to lessen available income for child support calculations.  It is important to know the date of the debt, to reveal the true intent behind the debt.  Minnesota Courts may apply adverse inferences to the dissipation of the marital estate, thereby protecting a spouse’s claim to lost income or property.

At Clausen & Hassan, our Minnesota Family Law Attorneys have experience with business evaluations, cash-flow analysis, child support calculations, spousal support calculations and the determination of income for property division.  If you have questions about your specific situation, contact us today for your free consultation.

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What is Alimony?

Posted on January 29, 2012

Alimony is called “spousal maintenance” in Minnesota.  It is a monetary payment from one spouse to the other after a divorce is finalized.  A temporary support order may also be issued while the divorce case is pending.

Alimony was established to replace the shared responsibilities of marriage.  Historically, one spouse was the sole “bread-winner”, and the other spouse served as a homemaker.  As more and more families started to have both spouses work outside the home, most parties were capable of financially supporting themselves after marriage.  As such, alimony has become less necessary, or at the very least, less of a focal point in the divorce process. The shift toward no-fault divorce has also altered the alimony decision process.
Today, spousal maintenance may be permanent or temporary.  The factors a Minnesota judge will consider on whether to order a spousal maintenance award, and in what amount and for what duration, is set forth in Minn. Stat. s. 518.522.

For example, in deciding whether to award spousal maintenance, a judge will determine (1) whether one spouse “lacks sufficient property” to provide for his or her reasonable needs, when considering the standard of living established during the marriage. The judge will also consider (2) whether the spouse requesting spousal maintenance is unable to provide for himself/herself, after considering the standard of living established during the marriage and appropriate employment.  When children are involved, a Minnesota court will take into account whether the condition or circumstances of the child (i.e. special medical condition) make it appropriate that one party not be required to seek employment outside the home.

With respect to amount and duration, a Minnesota court will look at several factors.  For example, a Minnesota judge will look at (1) the financial resources of the spouse seeking spousal maintenance, (2) the time necessary to obtain sufficient education or training to obtain employment opportunities, (3) the standard of living established during the marriage, and (4) the duration of the marriage.  A Minnesota court will also consider (5) the age, and the physical and emotional condition of the spouse seeking maintenance, and (6) whether the person from whom maintenance is sought has the ability to pay spousal maintenance.  In the case where one party was a homemaker, a court may consider (7) the contribution that spouse made towards the furtherance of the other party’s employment or business.

After a divorce has been finalized, a request for modification of a spousal maintenance can be initiated by either party for several reasons.  Individuals thinking about divorce should know that spousal maintenance is a separate issue from child support, as the purpose of each is the support of different individual people.

If you have questions about Minnesota spousal maintenance, contact our divorce lawyers for a free consultation about your situation.

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The Definition of Domestic Abuse in Minnesota

Posted on January 21, 2012

The National Domestic Violence Hotline defines domestic violence as a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner.  Abuse is physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person. This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure or wound someone.

The Minnesota legislature enacted a Domestic Abuse Act, to: (1) establish the legal definition of domestic abuse; (2) determine the jurisdiction (power) for a domestic abuse case; (3) waive filing fees for an Order for Protection; and (4) create the court procedure for an Order for Protection.

According to Minnesota Statute §518B.01, “Domestic abuse” is defined as:

(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats, criminal sexual conduct, or interference with an emergency call.

There must be a certain relationship between the parties for the Court to issue an Order regarding Domestic Abuse.  Spouses, former spouses, parents and children, people related by blood, unmarried couples, people who have lived together in the past, people who have a common child together or any people involved in a significant romantic and intimate relationship are all individuals who are subject to the Domestic Abuse Act.

The obvious cases of Domestic Abuse involve conduct where when one partner hits, punches, slaps, bruises, shoves or kicks another person. However, Minnesota Courts will find domestic abuse in less overt acts, such as the fear of harm.  Examples of fear of harm include:

1.      Where a former husband delivered parties’ marriage certificate to former wife’s doorstep in mutilated condition along with note which read “if this is what you want, this is what you will get,”   Boniek v. Boniek, 443 N.W.2d 196 (Minn. App. 1989); or

2.      Verbal threats such as “I will hunt you down” or “You’ll end up in a box.” Hall v. Hall, 408 N.W.2d 626 (Minn. App.1987).

At Clausen & Hassan, our lawyers have experience with Domestic Abuse issues and Order for Protection proceedings.  We have successfully brought Petitions for Order for Protection and we also have significant experience in defending allegations of Domestic Abuse.  If you have questions about your specific situation, contact our Minnesota Order for Protection Attorneys for your free consultation.

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Minnesota Child Custody and Preference of a Child

Posted on January 20, 2012

As discussed in previous blog posts regarding physical custody and legal custody, in Minnesota family law cases involving custody, the Court is required to look at thirteen (13) factors to determine what custody arrangement is in the child’s best interests, along with 4 others factors to evaluate whether joint custody is appropriate.

The “best interests” factors are as follows:

(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.

Minn. Stat. sec. 518.17

Preference of the child may be considered

Out of the 13 “best interests” factors, the second factor in the statute receives a lot of attention.  The second factor reads as follows:

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
Minn. Stat. sec. 518.17, subd. 1(2)

In other words, the Court may look at the preference of a child when making a custody determination so long as the child is of sufficient age and maturity to assert such a preference.  However, there is no specific or magical age at which a child is allowed to assert a preference.  Generally speaking, the older the child, the more weight the Court will give to his or her opinion with respect to custody.  However, in these sort of cases, the maturity of the child is the controlling factor, not the age.  While there is an age where a child will automatically not be asked his/her preference (example, when the child is less than 8 years old), there is no age when the child’s  preference is definitely sought.  Another significant factor may be if the child is dealing with any issues that might influence his/her preference (as an example, if a child has mental health issues).

Divorcing parents should know, however, that even if a child asserts a strong preference to live with one parent, the Court must balance the 13 factors to determine what custody arrangement is in that child’s “best interests”.  In other words, the preference of a child is simply one factor.  Therefore, no one factor is dispositive or controlling  when it comes to custody determinations.

No Coaching

The Courts also frown upon any coaching of the child or any efforts by a parent to coax the child’s preference.  In custody disputes, the preference of a child is sought by a professional (example: neutral custody evaluator).  In this context, it is important to remember that the child’s preference must be voluntary and must have been shared in a context that is considered appropriate by the Court.

If you have questions regarding physical custody and legal custody, contact one of our experienced Minnesota Child Custody Lawyers for a free consultation.

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Minnesota Child Support and Military Allowances

Posted on January 18, 2012

Minnesota does consider military allowances as income when calculating child support.

Men and women serving in the Military often receive allowances for active duty. These allowances are often called BAH (Basic Allowance for Housing) and BAS (Basic Allowance for Subsistence). Military men and woman do not pay state or federal taxes on BAH and BAS allowances, thereby resulting in a substantially increased monthly income when compared to other typical forms of compensation.

For calculation purposes, a “reasonable child support” is based upon on all sources of income, including military allowances of BAH and BAS. By including military allowances in the calculation, the child support award can be substantially higher.

Many divorcing parents in the military grapple with the issue of whether a military member should be entitled to reap the entire benefit of BAH and BAS instead of paying a portion of the allowances as child support. If this issue is contested, Minnesota Courts will likely include BAH and BAS allowances as income because: (1) the Minnesota child support statute has been consistently interpreted in a broad manner; (2) Minnesota case law supports the inclusion of the military allowances as income for child support; and (3) public policy supports the idea that the benefit of military allowances should flow to the child and provide a standard of living to what the child would have experienced had the parents not divided the household.

Minnesota’s child support statute defines “income” as:

“any form of periodic payment to an individual including but not limited to wages, salaries, payments to an independent contractor, workers’ compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments.”

While the Minnesota child support statute speaks directly to military retirement, pension and disability payments as income for the purposes of calculating child support, the issue of BAH and BAS has been directly addressed in the Minnesota Courts. Jackson v. Jackson, 403 N.W. 2d 248, 251 (Minn. Ct. App. 1987) (holding although the increase in the father’s income was in part due to increased allowances as part of father’s military service, the child was entitled to benefit from the father’s increased income and to enjoy the standard of living that the child would have had if the marriage had not been dissolved).

At Clausen & Hassan, our Minnesota Family Law Attorneys have experience with child support issues and questions. If you have questions about your specific situation, contact us today for your free consultation.

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Interstate child support: Minnesota and Uniform Interstate Family Support Act

Posted on January 9, 2012

In our last discussion we covered the issue of moving between states with minor children and the child custody and parenting time laws that follow the child. The Uniform Child Custody Jurisdiction and Enforcement Act is the tool used by courts of the State of Minnesota to determine whether they have jurisdiction to decide child custody and parenting time for a particular child. But what about the question of child support? If a Minnesota court has jurisdiction to determine which parent the child may live with, or how much time the child may spend in a parent’s care, does the Minnesota court also get to determine how much child support that child is entitled to? The answer is … not necessarily.

Although a court may have authority to decide where the child lives and spends time, it may not have authority to decide how much support that child receives from a parent in the form of a child support order. The reason for this is that a separate body of law exists to address the question of child support, and whether a state has authority or ‘jurisdiction’ to establish or modify a child support order. This separate body of law is the Uniform Interstate Family Support Act, which has been enacted into law by Minnesota and all other states as well. Similar to the UCCJEA, the intent behind UIFSA is to make the issue of determining jurisdiction over child support orders between different states an easier puzzle to solve.

Unfortunately the puzzle remains a tough one, and there is no ‘nice and easy’ rule we can extract from UIFSA like we did with the UCCJEA’s six-month ‘home state’ rule from our last discussion. In that discussion we talked about how a Minnesota Court can assume jurisdiction over a child custody or parenting time order after a child has resided here for six consecutive months and thereby established residence. Not so with UIFSA.

Unlike its counterpart UCCJEA, UIFSA confers jurisdiction, generally speaking, on the state where the parent, and not the child is living. The parent in cases concerning child support, is usually the non-custodial parent and is therefore charged with paying a child support order to the other parent. It is important to remember that UIFSA has many significant exceptions to the general notion that a child support order remains in the state with the parent responsible for paying support. But there is undeniably a key distinction between child support orders and child custody and parenting time orders when it comes to deciding whether a Minnesota court can modify orders from other states.

Parents may find themselves in the position of arguing in a Minnesota court for child custody and parenting time, and then having to argue in a Florida court for child support, for the very same child. Although not uncommon when parents live in separate states, it does not always have to end up like this, and with some careful consultation and application of both the UIFSA and the UCCJEA it is possible to have child support matters heard in the same state as child custody and parenting time matters.

At Clausen & Hassan, our Minnesota Family Law Attorneys have experience with UIFSA, and other child support problems and questions. If you have questions about your specific situation, contact us today for your free consultation

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Minnesota and Uniform Child Custody Jurisdiction and Enforcement Act

Posted on January 4, 2012

One of the freedoms that the United States Constitution affords residents is the right to determine where they live in this country. In some cases that can be more than one place during one’s lifetime. Whether it be for work, family, weather, or personal taste, it is not uncommon for individuals to relocate with their families, perhaps more than once, between the several states. Interstate travel is no longer impractical thanks to modern and efficient transportation, whether by air, rail or interstate highway travel. We are a mobile civilization.

Our ever-increasing mobility presents some question then as to whether and how the various laws among the several states affect individuals moving between states. To what extent does a divorce, child custody, or parenting time Order from a foreign state affect an individual or family recently relocating to Minnesota? Conversely, does a Minnesota child custody or parenting time order continue to apply to former residents now living in other states?

To help answer this question the fifty states have enacted a body of law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Minnesota at Minn. Stat. Chap. 518D et seq. The purpose of this law is to assist individuals and the courts in understanding whether Minnesota, or some other state’s laws, apply to a child custody or parenting time question for a child who may have ties to another state. If a child is subject to a custody order or parenting time schedule from another state, and lives in Minnesota, the UCCJEA will help a court decide whether it has jurisdiction to apply and enforce Minnesota child custody and parenting time law with respect to that child.

Although the law is very nuanced with several exceptions and caveats, generally speaking, the terms of a child custody or parenting time order come under the jurisdiction of a Minnesota court after a child has lived in Minnesota for six consecutive months. It is after six months of continued residence here that the state where the child custody or parenting time order originated, effectively ‘loses’ the ability to enforce, adjust, or modify the terms of that order. Minnesota effectively takes ownership of the child’s case. It is important to point out that this does not automatically happen, and that there are several steps that must be taken in order to bring the case before a Minnesota court. One should always refer to the UCCJEA before attempting to modify or enforce the terms of an out-of-state child custody or parenting time order in Minnesota.

At Clausen & Hassan, our Minnesota Family Law Attorneys have experience with the UCCJEA, and other child custody and parenting time laws. If you have questions about your specific situation, contact us today for your free consultation.

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Minnesota Divorce Records

Posted on November 10, 2011

In Minnesota, a divorce proceeding is a public affair.  It means that any person can go to a particular courthouse and obtain the paperwork relating to a divorce.  All that is needed is the last name and the first name of the divorcing couple.  Consequently, all documents filed with the Court  are accessible and available to the general public.  For example, a divorce decree for any given case is a public record.  In addition, all Minnesota cases can be tracked by searching the Court’s website: http://pa.courts.state.mn.us/default.aspx

In some circumstances, it may be possible to seal a divorce file.  The first method is for both the parties to agree to seal the file, in which event, the agreement is forwarded to the Court.  The Court still has the discretion to deny the request to seal the file, even if both parties have agreed to seal it.  The Court must balance the public policy of divorce proceedings being public and the parties’ reasons for requesting that their file be sealed.  If the Court is satisfied that there is good cause for the request to seal the file, the Court can sign off on the parties’ agreement and the file is sealed.  The bottom line is that just because two (2) divorcing couples agree to seal their divorce file does not mean that the Judge will necessarily agree to go along with the agreement.

The second way to seal a divorce file is to bring a motion before the Court along with the appropriate paperwork.  This consists of a written motion along with an affidavit setting forth the reasons or good cause why the divorce file should not be made public.  Examples include celebrity divorces or where the divorce being made public would adversely impact the livelihood of the divorcing couple and consequently, any minor children of the divorce.  This is a fact-based analysis.  If the Court grants the motion, the divorce file is sealed.

It is important not to confuse a divorce proceeding, which is public, with proceedings such as Paternity (where a child is born to parents who are not married) or Order for Protection proceedings (Domestic Abuse).  Paternity and Order for Protection Proceedings are not public and only the parties involved in the case and their respective attorneys can access the Court file.

If you have any questions regarding divorce records, contact our Minnesota Divorce Attorneys for a free consultation.

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The Role of Professionals in a Minnesota Divorce

Posted on October 5, 2011

Even though divorce feels like a private matter, in a lot of cases, there are several professionals that may get involved.  These professionals purposefully associate with your case to ensure that you are awarded a just and equitable settlement, as well as a fair evaluation of your family, especially with regard to children.

If you have children and you are going through a divorce, there are a variety of professionals that may get involved.  These professionals range from people that you hire independently to make an evaluation of your custody situation, people that make binding decisions with regard to your custody or parenting time, and people that serve as the voice of the children in court – usually when the children are too young to voice their opinion.

To make it easier to understand, here is a breakdown of several of the professionals that get involved in divorce cases when child custody or parenting time is an issue.

Parenting Time Expeditor (PTE) – A parenting time expeditor (PTE) is an individual that may be appointed to your case by a judicial officer. Or, the parties may hire a PTE when they have issues regarding parenting time that they are unable to resolve themselves and desire to avoid the formal court system. A PTE enforces, clarifies, and interprets prior orders regarding parenting time.  A PTE’s decisions are binding upon the parties, but may be subject to court review. A parenting time expeditor only has authority to make decisions regarding parenting time. A PTE cannot make decisions regarding custody or child support. A PTE’s fees may be set by the PTE or by the court. For more information, see Minn. Stat. 518.1751.

Guardian ad Litem (GAL) –  A Guardian ad Litem (GAL) must be appointed if there is an allegation or a finding of domestic abuse. Or, a judicial officer may appoint a GAL without consent of either party if the judicial officer feels it is necessary.  A GAL is defined by statute, and considers the child’s wishes with regard to parenting time and custody issues.  A GAL’s role in the court system is varied, extensive, and can be quite persuasive. A GAL becomes a party if the case is in juvenile court, if a child becomes a party, or may become a party if necessary in family court.  Unlike a PTE, a GAL does not have decision making powers, but may issue a report for the judicial officer’s review which includes recommendations, observations, and notes.  A GAL’s recommendations are based on the best interests of the child.  A GAL’s fees may be set by the GAL or the Court.  For more information, visit Minn. Stat. 518.165.

Custody Evaluator – A custody evaluator is either requested by both parties or assigned by a judicial officer to conduct a custody evaluation. A custody evaluator investigates the family and makes recommendations regarding custody and parenting time – in other words, he or she evaluates the case and gives recommendations on how custody should be allotted between the parties.  The custody evaluator may interview children and consider the child’s or children’s preference with regard to custody.  A custody evaluation is not a quick process.  It usually takes approximately 3-4 months.  A custody evaluation is most often used when there is a question as to a parent’s abilities to parent, or emotional or physical limitations that one or both parties may have. A custody evaluator’s fees are set by the custody evaluator, or by the court.  For more information, see Minn. Stat. 518.167.

Parenting Consultant –   A parenting consultant may be appointed by a judicial officer, but only with consent of both parties.  In other words, a judicial officer cannot require that a parenting consultant be assigned– it is something that both parties need to agree to.  A parenting consultant is the most varied role of any professional mentioned thus far, and his or her role is defined by the parenting consultant himself, the parties, or the court order.  Typically, a parenting consultant will educate the parties regarding a child’s developmental issues, advise the parties on communication issues, and facilitate discussion between the parties with regard to parenting issues.  Perhaps most importantly, a parenting consultant has the ability to make decisions regarding any parenting issue, in addition to parenting time scheduling issues.  However, a parenting consultant cannot change the label of legal or physical custody.  A parenting consultant’s fees are set by the individual parenting consultant.  For more information, see Minn. R. Gen Prac. 114.

At Clausen & Hassan, our Minnesota Divorce Lawyers have experience working with various family law professionals.  If you have questions about your specific situation, contact us today for your free consultation.

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