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The Duration of Spousal Maintenance

Once you get past the question of whether spousal maintenance should be paid, the focus shifts to how much and for how long.  In this post, I deal with the question of how long a person should be required to pay spousal maintenance.

Determining the exact length of a maintenance obligation is difficult.  While the law sets forth eight factors courts are supposed to consider when setting a maintenance award, often times, the analysis boils down to two things: the length of marriage and the ability of the recipient spouse to become self supporting at some point in the future.

Judges sometimes attempt to avoid the law’s detailed analysis by using another measurement as a proxy.  I have known at least one judge who simply divided the length of the parties’ marriage by 2, and, presto, out popped the magic maintenance number.  While this approach has absolutely no support in Minnesota law, it is frequently used by courts.

If it is difficult to determine exactly how long spousal maintenance will need to be paid, it is usually possible to group spousal maintenance awards into one of two categories: permanent spousal maintenance or temporary spousal maintenance.  For some people, the labels themselves evoke an immediate emotional response.  Spousal maintenance payors tend to be opposed to paying anything called “permanent maintenance.”  Spousal maintenance recipients are usually worried that “temporary maintenance” will be insufficient to meet their needs long-term.  Yet, as emotionally troubling as these labels may seem, it is important to understand that “permanent spousal maintenance” is not always permanent and “temporary spousal maintenance” is not always temporary.

Permanent spousal maintenance simply means that the payor spouse bears the burden of proving that the terms of the maintenance award should be changed at some point in the future.  In order to do this, the payor spouse would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused the existing order to be unreasonable and unfair.  Examples of legitimate changes include things like retirement and unemployment.

By contrast, a temporary spousal maintenance award is for a fixed period of time.  If the person receiving spousal maintenance wants to extend the award beyond the fixed term, they would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused continued maintenance to be required.  The purpose of temporary spousal maintenance is to give the recipient time to become self supporting.

Between the two extremes of permanent spousal maintenance and temporary spousal maintenance, exist the new, more flexible “hybrid” type awards.  These awards combine elements from both the permanent and temporary categories.  Currently, there are two types of hybrid awards being used in Minnesota.  The first type is a form of permanent spousal maintenance where the court imposes some kind of rehabilitative obligation on the recipient spouse.  Thereafter, the court periodically reviews the award to determine if and when the spouse becomes self-supporting.  This is significantly different from the traditional form of permanent spousal maintenance where the recipient spouse has no obligation to ever become self-supporting.

The second type of hybrid award is a form of temporary spousal maintenance (for a term of years), which is reviewed de novo – as if the court were awarding spousal maintenance for the first time –at the end of the term.  This type of award avoids imposing burdens of proof on either party and is not seen as precedent setting.  It gives the recipient spouse time to become self supporting, without disadvantaging either party.  It is used most frequently when the dispute is not “if” a spouse will become self-supporting, but “when” it will occur.

In December 2009, the Minnesota Court of Appeals had the opportunity to address the question of whether it was proper for a trial court to use the hybrid form of temporary spousal maintenance.  The case involved two people who had been married for 19 years.  At the time of their divorce, the spousal maintenance recipient was employed, but was not earning income at a level sufficient to be self supporting.  After a trial, the court found that while it was impossible to determine exactly when the spousal maintenance recipient would become self supporting, it was certain that she would do so at some point in the future.  Thus, the court ordered the hybrid form of temporary spousal maintenance described above.

On appeal, the Minnesota Court of Appeals affirmed the trial court’s decision, finding that it was acceptable to use the hybrid form of temporary spousal maintenance because it was certain that the recipient spouse would become self supporting at some point in the future.

The case is Maiers vs. Maiers, 775 N.W.2d 666 (Minn. Ct. App. 2009).

Nonmarital Property, the Supremacy Clause, and potentially Harsh Consequences

If you are familiar with the concept of nonmarital property under Minnesota law, you know that nonmarital property is not typically divided between the parties at the time of a divorce.  Instead, the property stays with the party who owned it before the marriage or who acquired it by gift or inheritance at some point during the marriage.  The rule against dividing nonmarital property makes proving a client’s “nonmarital claim” an important part of any property division.

But, like many things in law, the rule against dividing nonmarital property is not absolute.  The Court has the power, in cases where the parties have relatively few marital assets and one of the parties has significant nonmarital assets, to “invade” or apportion up to one half of that spouse’s nonmarital property.  In order to do so, however, the Court must find that a “spouse’s resources or property are so inadequate that the division of only the marital property would work an unfair hardship” upon them.  Minn. Stat. § 518.58, subd. 2 (2009).

At first glance, this exception may seem to swallow the rule.  I have certainly worked on cases where the only real asset is a party’s nonmarital property.  It would seem, in those cases, that the Court should invade a spouse’s nonmarital property.  But, in practice, it doesn’t usually work that way.  Convincing a Court to invade a spouse’s nonmarital property is difficult.  You need to show evidence of serious hardship.  The mere fact that a spouse ends up with less (or even little) in the way of property is generally insufficient.  The exception is used by Courts to prevent cases of serious injustice.

In December 2009, the Minnesota Court of Appeals confronted the question of whether federal law protects certain types of nonmarital property from invasion or division, even in cases of unfair hardship.  The case involved life insurance and death gratuity benefits paid to the parents of a fallen U.S. service member.  Prior to the service member’s death, he had designated his mother (and not his father) as his sole beneficiary for purposes of life insurance and military death benefits.  Four years later, when his parents divorced, the mother argued that the life insurance and death benefits were her nonmarital property because she had received them from her son as either a gift or inheritance during the marriage.  In deciding the issue, the divorce court found that the life insurance and death benefits were, in fact, the mother’s nonmarital property but divided them between the parties using an unfair hardship theory.

On appeal, the Minnesota Court of Appeals reversed.  It held that federal law prohibits division of military life insurance and death gratuity benefits.  The beneficiary named by the service member controls.  All proceeds must be paid to that person.  The divorce court lacks the power to divide the military benefits, even in cases where a failure to divide them would result in an unfair hardship. 

To understand the real world consequences of this rule, consider the father’s circumstances in the case above:  The father was 67 years old.  He had no bank accounts, retirement savings, or pension.  He had no vocational training and had never reached high school.  He had not held full-time employment since 2002, and his only source of income was monthly Supplement Security Income payments of approximately $424.  He had employment restricting health problems and lived with his elderly mother.  His only assets were a 17 year old Ford and an entitlement to half of the proceeds from the sale of the parties’ modest home.

How much did the mother receive?  More than $500,000.

Lesson:  Carefully review any federal beneficiary designations to ensure that they accurately reflect the intent of the employee or service member.  Don’t assume that the divorce court can protect your interests at a later date.

The case is Angell v. Angell, 777 N.W.2d 32 (Minn. Ct. App. 2009).

Minimizing the Effects of Divorce on Children

If you are reading this posting, chances are pretty good that you are either involved in, or are considering getting, a divorce.  If so, there are a few things you need to know.  Ending a marriage can be a difficult process.  It is one that can hurt everyone involved, especially children.  Research has consistently shown that more children of divorced parents have behavioral problems than children from nondivorced families.  Depending upon which study you believe, children from divorced families demonstrate more acting out, aggression, depression, difficulty with peers, and school problems than other children.  Some research has found as many as 20 to 25 percent of children from divorced families have behavioral issues.

But, before you decide to stay in an unhappy marriage for the sake of your children, you need to know that staying in the relationship has consequences too.  Research suggests that the worst problems for children result from situations involving high parental conflict – even when that conflict occurs within the context of a marriage.  Children who live in high conflict families tend to have more severe behavioral problems than children from any other type of family structure, including children from divorced households.  Children of these high conflict families tend to be more depressed, more impulsive, and more hyperactive, than even those at-risk children from divorced families.

Thinking of throwing in the towel?  Before you do, it is important to understand that the damage caused to children in divorced and high-conflict families does not a result from a change in the family structure per se.  In other words, it is not the parents’ separation that actually harms the children.  It is other things that really do the damage.  Children are damaged by instability and fighting, which often accompany a divorce, not the physical separation.  Things like school changes, financial issues, relocation, and poverty have all been linked to decreased outcomes in children.

Because the damage is not a result of the divorce itself, there are things that you can do to help protect your children.  Remember, if 25 percent of children from divorced families are in trouble, that means that 75 percent of them are not.  Here are some of the things that you can do to give your kids the best chance for success:

Tips for Minimizing Damage to Children

1.  Ensure Effective Custodial Parenting:  As frustrating as it may seem for the soon-to-be-noncustodial parent, it is essential that you support the well-being of the custodial parent.  For children to do well, custodial parents have to be functioning at a relatively high level.  Single parenting is a difficult task.  Depression, anger, or economic troubles can distract from effective parenting.  Your kids depend on it.

2.  Minimize Conflict between the Parents:  This is the single most important factor in promoting positive outcomes for children.  Studies have shown that children of high conflict families are two to four times more likely to have behavioral issues than children more generally.  Sometimes, not fighting is the best decision you can make.  Understand, though, that this won’t be easy.  It will take time to figure out.  Divorce causes a lot of hurt feelings.  In the five years following a divorce, only 25 to 50 percent of parents manage to effectively engage in cooperative co-parenting.  As many as 40 percent of divorced parents end up parallel parenting, not in conflict but not cooperating either.  Try hard to put your children’s interests above your own.  It is possible for people to manage their anger, even if they don’t like their ex-spouse.

3.  Don’t Badmouth the Other Parent:  Contrary to popular belief, badmouthing your ex-spouse does not make your child like you more.  If anything, the opposite is true.  Children hate it when parents badmouth each other.  No matter how much you dislike your ex-spouse, your child does not (and will not) feel the same way.  You only hurt your child’s feelings when you badmouth the other parent.  Do not explain the other parent’s short-comings.  Do not ask them to take sides.  And do not ask them to keep secrets. 

Raising children is hard work.  Raising them in the context of a divorce can be even more challenging.  Don’t give up.

For more information, or to speak to one of our attorneys, please visit our website at
www.gadtke.com.

The Importance of Legal Counsel

If you are anything like most of my clients, the past few years have probably been difficult for you, both emotionally and financially.  The downturn in the U.S. economy has contributed to a desire, amongst many people, to try to conserve their limited financial resources.  In family law, this has manifested itself by people trying to get divorced without using a lawyer.

Deciding not to hire a lawyer, at least statistically, is not unusual.  Recent data from Hennepin County Family Court shows that more than seventy-five percent (75%) of all divorce cases involve at least one pro se party.  In other words, most cases in Minneapolis have at least one person, who, for whatever reason, has decided not to hire a lawyer.  This surge in unrepresented people has forced the court system to take drastic steps – everything from expanding self-help centers to mandating additional ADR to making the process more consumer-friendly –in an effort to squeeze the masses through the complicated web of legal rules and procedures.

The fact that people survive a divorce without legal counsel, however, does not mean that others should follow their lead.  Most unrepresented parties I encounter are unrepresented by necessity, not by choice.  They simply can’t afford to hire a lawyer.  If they could, they would.  It is rare that I encounter someone who actively does not want the help of an attorney.

But, you respond, “You’re a lawyer.  Obviously you are going to recommend that I hire one.  It’s how you make your money.”  That’s right.  I am.  And I do.  That doesn’t mean I’m wrong, though.  Surgeons make money by operating on people; yet we don’t think we could do the job as well ourselves.  That’s why we hire a professional.  The same is true in law.

Unlike health issues, however, you don’t begin to feel sick when you’ve made a bad legal decision.  Most bad legal decisions don’t manifest themselves until it is too late to correct them.  When your case is finished (or a temporary order is issued), it’s done.  A lawyer can’t ride in to save the day at that point.  You don’t get a “do over” because you didn’t hire a lawyer.  It doesn’t work that way. 

One instance where this is becoming more of a problem is in the context of court-ordered mediation.  If you agree to a mediated settlement agreement, you will likely be bound by its terms, even if you later change your mind after talking to a lawyer.  Understand that the role of a mediator is to reach agreement, not to advocate for your best interests.  Be careful what you agree to.  Sometimes the desire to simply have the process “over” can lead to bad long-term decision making.

Our job is to guide you through the process.  We give you options.  We discuss strategy.  We make recommendations.  Then we take direction from you.

Out of State Child Support Orders

Sometimes, following a divorce or paternity adjudication, one or both of the parties may decide to move to a different state.  While out-of-state moves present a number of important challenges – in many cases, it can become nearly impossible for the noncustodial parent to remain actively involved in the child’s life – people often ask about potential child support implications.  Can the existing child support order be changed or enforced in the new state?  How will child support be calculated in the future?

In Minnesota, these types of issues are governed by the Uniform Interstate Family Support Act (“UIFSA”).  See Minn. Stat. § 518C.  And, in most cases, the answers are extremely fact specific.  What is true in one case may not be true in another case.  It is difficult to generalize.  It is important for you to consult an attorney about the facts of your case.

Recently, however, the Minnesota Court of Appeals attempted to define the outer edges of the out-of-state modification doctrine.  In Hennepin County v. Hill, the Court confronted the question of whether a Minnesota court could modify the duration of a child support order originating from Mississippi, once the order had been registered in Minnesota for purposes of enforcement and modification.  In rejecting the father’s request that his child support obligation be shortened, the Court explained that the law treats the duration of a person’s child support obligation as a “nonmodifiable” term.  Because the term is “nonmodifiable,” and because the term originated from a Mississippi order, the father was required to continue paying child support until his obligated ended, as determined by Mississippi law.

Labeling the duration of a child support order as “nonmodifiable” is important because states have different rules regarding how long a person is obligated to pay support.  In Minnesota, for example, a child support obligation typically ends when the child turns age 18, or age 20 if they are still in secondary school, whichever is later.  Minn. Stat. § 518A.26, subd. 5 (2009).  Parents do not pay child support while a child is in college.  But, in Mississippi, the law obligates a parent to pay child support until the child turns age 21, with certain limited exceptions.  The difference, which is three (3) years of after tax child support payments, can be substantial. 

The case is Hennepin County v. Hill, 2010 WL 274651 (Minn. Ct. App. 2010).

For more information, visit our website at www.gadtke.com.


Potential Revisions to the Minnesota Child Support Law

In what seems to be an almost yearly occurrence, members of the Minnesota State Legislature have introduced legislation, which, if adopted, would substantially change the way child support is calculated in Minnesota.

Under existing law, non-custodial parents who have parenting time with their minor children between ten percent and forty-five percent of the year receive a standard twelve percent (12%) reduction to their child support payments to reflect monies spent on the children while in their care.  This reduction is referred to as the Parenting Expense Adjustment.

The newly proposed legislation would seek to alter the way Courts apply the Parenting Expense Adjustment by creating an extra category of child support reduction for those non-custodial parents who have parenting time between thirty percent and forty-five percent of the year.  Those parents would receive a thirty percent (30%) reduction to their child support obligation, instead of the standard twelve percent (12%) that they receive now.

The legislation would also expand the presumed amount of parenting time Courts would be required to award to non-custodial parents.  Currently, in the absence of other evidence, it is presumed that non-custodial parents should receive at least twenty-five percent (25%) of the parenting time with the minor children.  The proposed legislation would expand this presumption to forty percent (40%).  The law would also require Courts to make detailed written findings specifically identifying the reasons for failing to adhere to the legal presumption.

According to information on the Minnesota State House and Senate websites, the bill has been laid over in committee.  It is unclear whether any action will be taken on the bill before the end of the legislative session.  If, however, the bill were to become law, it would dramatically change the way parenting time is handled in Minnesota.  Effectively, it would create a presumption of nearly equal parenting time, shifting the burden of proof to the custodial parent to show why an award of forty percent parenting time is not in the best interests of the child.  The legislation is contained in Minnesota State House File No. 1003 and Minnesota State Senate File No. 1223.

New Research Suggests Growing up Without a Father Changes Brain Development

According to an article published Tuesday in the Wall Street Journal, German scientists have discovered that growing up without a father actually changes the way brains develop in a small guinea pig-like rodent known as the Degus.  Researchers studying Degu brain development found that Degu raised in single parent families have shorter nerve branches than those raised in two parent households.  The pups raised by single parents also exhibited more aggressive and impulsive behavior than those raised by two parents.  They lacked impulse control, and “when they played with their siblings, they engaged in more play-fighting and or aggressive behavior.”

The researchers noted that while the pups raised in single parent families received about the same amount of attention from their single caregiver as they did in two parent families, overall attention was significantly less for the single parent pups.  The researchers urged caution, however, in extrapolating these findings to human children, as human thinking and decision making is more complex.

Going forward, researchers intend to focus their energies on determining whether the pups brains can be “rewired” by introducing substitute caregivers to help repair the damage.  The research was published in the Journal of Neuroscience.  The article is titled, “This Is Your Brain Without Dad.”  It was written by Shirley S. Wang.

The end of Summer

Summer is over.  The kids have gone back to school.  And it is time for the attorneys and staff at Gadtke & Beyer to resume their blogging duties.  New posts are coming.  They should be up in the next few days.  Get excited.  Get really excited . . .

Dealing with Unrepresented Parties

Many of my clients believe that they will be able to run all over their spouse and make things go faster in their divorce case if their spouse is not represented by an attorney.  While my client certainly has the benefit of experience and legal knowledge on their side, the lack of an attorney on the other side does not necessarily mean that everything will go my client's way.  For example, my experience has been that many unrepresented parties (also called pro se parties) are unwilling to negotiate in good faith.  Often times, this is because they do not understand the law or the merits of the position they have taken in the litigation.  Because I do not represent them, there is also a built-in mistrust and reluctance to accept any settlement offer I propose.  Furthermore, I am ethically barred from providing legal advice to the other side.  More than once I have been told by an unrepresented party that they are not interested in negotiating and prefer to simply have the Judge make a decision.  This can be frustrating for my client, because it increases their attorney's fees, while their spouse does not "feel the pain" associated with ongoing litigation.

For these reasons, in most cases, I prefer to have the opposing party represented by an attorney.   It is helpful for the other side to hear from their own advocate the reasonableness of my client's proposal.  When a party has the benefit of having their own lawyer explain the law to them, the chances of reaching a settlement increase greatly.   An unrepresented party will almost never believe me when I tell them that the proposal I am making on behalf of my client is fair.  If, however, they hear it from their own lawyer, they are much more likely to believe it.

The Woes of Court-Mandated Appellate Mediation: Will the Real Family Law Appellate Mediation Program Please Stand Up?

I was at a continuing legal education luncheon this week when I was approached by a colleague who was exhorting the unbelievable success of the Minnesota Court of Appeals Family Law Appellate Mediation Pilot Program.  She explained how some of the “well-known” and “best respected” family law attorneys in town were claiming that the program had a ninety percent success rate.  She said that even some of the “good family law appellate lawyers” were resolving cases with the help of a court-appointed mediator.  Appeals, it would seem, at least in the family law context, will soon be a thing of the past, or so the program’s proponents would have us believe.

For the program’s advocates, any success is a tremendous success.  How could a program that encourages settlement and decreases the cost of litigation be bad?  Well, it could be bad if it promotes settlement over the interests of justice.  It could be bad if it represents yet another barrier to entry to the legal system for middle class families, and it could be bad if it increases the cost of litigation, while conferring only marginal benefits on employees of the judicial branch – by decreasing their caseload.

Make no mistake, I am strongly in favor of voluntary settlement programs that increase settlement rates and decrease the cancerous nature of family law proceedings.  As a trial attorney, I know all too well the real world damage done to families engaged in prolonged legal battles.  But, the purpose of alternative dispute resolution is to prevent trial.  Its benefit is in providing litigants with a measure of control over what is an otherwise uncontrollable situation.  It increases litigant satisfaction by having the parties “buy-in” to the terms of the settlement agreement.  All of these goals are legitimate.  And all of them are prejudgment in scope.  The landscape looks very, very different after the Court issues its ruling.

Why?  Well, for one thing, the case has been decided.  We have an answer.  We know the outcome.  In many counties, getting a case decided on the merits is not an easy thing to do.  Judges often resist setting family law cases for trial.  Some Judges set, reset, and reset again Pretrial Conferences in an effort to avoid contested litigation.  Other times, Judges order additional ADR even after the Pretrial Conferences in order to avoid trial.  Getting a decision can cost litigants lots of money.

What’s more, once we have a decision, what incentive does the prevailing party have to settle the case, apart from the opposing party’s blackmail-like threat of additional attorney fees?  The trial judge, who heard all the evidence and weighed the creditability of all the witnesses, has decided the case in their favor.  Are we to simply dismiss the trial judge’s ruling as unfounded or untrustworthy?  If so, this undercuts the very essence of our system of appellate review – deference to decisions of the trial court.  Or, alternatively, are we to conclude that the court-appointed mediator, who has just been assigned to the file, has a better grasp on the facts and the law than the trial judge?  How does this promote a just and equitable outcome? 

These concerns notwithstanding, the program’s proponents continue to beat the mediation drum.  It continues to beat despite the fact that the “success” rate touted by the program’s advocates is much too high – during a recent on-line CLE webcast one of the program’s creators noted that recent data actually shows an approximately fifty percent (50%) success rate for the thirty cases completed.  The mediation drum continues to beat despite the fact that abandoning appeals does not necessarily mean that the program is working, at least not in terms of increasing litigant satisfaction.

What would be really interesting to know, and what I hope the study’s authors will tell us, is the percentage of “resolved” cases that involved pro se appellants.  How many of the alleged “success stories” weren’t really settled as much as they were dismissed?  A sizeable number of family court appeals are dismissed or otherwise summarily disposed of.  How many of the “success stories” involved pro se appellants just giving-up?  Does that level of “success” justify the financial burden placed on all other litigants by forcing them into the program?

Maybe the Program’s creators will answer some these questions for us.  Then again, maybe they won’t.

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