Minnesota Divorce & Family Law Firm

The Brown Law Offices, P.A. is a Twin Cities law firm focused on divorce and family law issues. Our attorneys use common sense and attempt to cost-effectively resolve disputes. When the need arises, however, we are prepared to litigate and take your case to trial. Our lawyers serve primarily Hennepin, Anoka, Sherburne and Wright County. But, we’ve also handled... Learn More

Common Law Marriage and Cohabitation Agreements: The Law in Minnesota

ringA common-law marriage is one that involves two people living together as though married, holding themselves out as spouses, without participation in a formal wedding ceremony.

Some states, such as Colorado, Alabama, Texas and Pennsylvania, recognize common-law marriage. Minnesota does not.

Common-law marriage was abolished in Minnesota in 1941.

However, Minnesota does recognize common-law marriages entered outside the State of Minnesota.

In other words, if you have legally established a common-law marriage elsewhere, and have moved to Minnesota, then your marital relationship is recognized under Minnesota law. Courts will give “full faith and credit” to the marital relationship.

If you live in the State of Minnesota, and are cohabitating with a domestic partner, it is highly recommended that you sign a cohabitation agreement.  As cohabitants, you are better protected if you do so.

Such agreements address the division of property in the event that your relationship fails. Otherwise, the Court will typically allocate property in direct proportion to the litigants’ financial contribution.

If you have a question concerning cohabitation agreements, or wonder whether your common law marriage is legally recognizable under Minnesota law, we’re here to help.

Call (763) 323-6555 to speak with one of our experienced family law attorneys free of charge.

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Can I Recover Attorney’s Fees and Costs from my Spouse as Part of a Divorce in Minnesota?

monMinnesota law allows the parties to a divorce to make a claim for attorney’s fees, and other costs, from the other side, in certain situations.

There are just two ways that you can recover attorney’s fees from the other party in a divorce.

The first type of request is based on need – where one of the parties does not have the ability to pay divorce attorney fees, while the other spouse has the ability to pay these costs. This is the most common type of fee award in family court.

The second type of fee award can be imposed on the other party in a divorce based upon their bad-faith conduct.  In such cases, the court must find that a spouse has behaved unreasonably, contributing to a delay, and increasing the cost of the proceedings.

Simply contesting issues in the divorce, or requesting a trial does not necessarily mean that the spouse has engaged in bad-faith or unreasonable conduct.

It’s also important to understand that a real, imagined or perceived insult by your spouse will not qualify as unreasonable conduct in divorce cases. The focus is on conduct leading to unnecessary litigation – not hurt feelings.

Do you have questions about an attorney fee award as part of a divorce? Our lawyers have handled thousands of cases – many involving significant fee awards. We’re here to provide answers. Call (763) 323-6555 for a free consultation.

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What is a “Void” or “Voidable” Marriage and How Do They Differ in Minnesota?

gavjuUnder Minnesota law, a marriage that does not meet certain criteria can be annulled.  An annulment is different from a divorce.

In annulment, the parties seek a finding that the marriage should never have taken place.  In divorce, however, there is an understanding that there was a valid marriage, which has been irretrievably broken.

Minnesota law differentiates between a void marriage and voidable marriage.

A void marriage is one in which the law states that the marriage should never have taken place, because the parties did not meet the requirements for obtaining a marriage license in the first place.

There are certain criteria that must be met for a marriage to be declared valid in the State of Minnesota.

The marriage must be between a man and woman (until next week, when same-sex marriage becomes legal in Minnesota).

If the parties are between 15 and 18 years of age, they must have parental consent for the marriage.

State-approved personnel must preside over the marriage ceremony, and the ceremony must include at least two witnesses above the age of 16.

If the other party was married earlier, then there must have been a dissolution of that marriage before the new one. In other words, if you marry someone when they are already married, or you are already married, your new marriage is legally non-existent.

If any of the above conditions are unsatisfied, then the marriage can be declared void as a matter of law.

However, if, after the marriage, one of the parties discovers that certain facts were withheld, or not disclosed to him or her, at the time of the marriage, then he or she can move to annul a voidable marriage. It’s their choice. The marriage is legally valid, unless a party seeks to avoid it.

Examples of circumstances in which a person may be eligible to declare the marriage voidable are impotence, intoxication by drugs or alcohol at the time of the marriage, and the presence of certain kinds of mental illness or deficiency at the time of marriage.

If you have questions about the nature of a void or voidable marriage, we can help. Our lawyers have assisted a number of litigants in having their marriage declared void as a matter of law. Although less common than in the era of fault-based divorce in Minnesota, the law does provide an alternative to marital dissolution. Call (763) 323-6555 to speak with one of our family law attorneys free of charge.

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The Real Estate Market is in a Rebound. What Should I Do With The House as Part of the Divorce?

estatesIn order to determine your best option concerning the marital homestead, it is important to understand what it costs to live in the house on a monthly basis and the value of the marital equity in the homestead.

In terms of housing expense, best to make a simple budget outlining all expenses associated with the home, including the mortgage principal, taxes and insurance. Other expenses to consider include a second mortgage (or line of credit payment), maintenance expenses (such as snow removal or lawn care), cleaning expenses, major repairs, heat, water, gas, garbage, phone, cable and internet.

In terms of determining the marital equity, you must first determine the value of the residence relative to any encumbrances outstanding against the property. In determining value, we often rely on a realtor’s market analysis, a formal appraisal or the tax assessed value. The most recent mortgage statement(s) will provide the value of the present offset against the property.

Just because equity may exist in the home does not mean that the equity is equally divided among the parties. The non-marital interests of each party must be considered. Non-marital interests typically involve one party making some, or all, of the down payment on the residence with pre-marital home equity or savings. In other cases, a non-marital interest is created by spending down the mortgage with an inheritance received during the marriage.

The actual equity is likely to be less in light of potential sale costs. Realtors typically charge between five and seven percent for their services. In addition, some expense may be necessary to make the home marketable.

Another consideration involves the tax implications of sale. The sale of real estate usually does not result in a tax consequence. But, if you have moved a lot in recent years, or the relevant property is not your primary residence, capital gains may apply.

Finally, it makes sense to explore general market trends. Does it make sense to hold the home if, as in the recent past, property values are falling?

The disposal of residence can take three forms: (1) traditional sale; (2) short sale; and (3) foreclosure. The only method upon which parties realize equity, naturally, is a traditional sale. Both a short sale and foreclosure will result in no equity to divide, along with a hit to the owner’s credit rating.

The sale proceeds, so long as entirely “marital” are typically divided equally among the parties following sale. In some cases, however, one spouse will receive a portion of the other spouse’s equity as an offset for some asset of value taken by the other spouse.

If one of the parties wishes to remain in the homestead, they must somehow satisfy the equity interest of the other party. This can be accomplished in a number of ways, including: (1) a refinance and payment to the exiting spouse; (2) an installment loan payable to the exiting spouse; (3) allocation of some other asset of value in exchange for the equity of the exiting spouse; or (4) a lien in favor of the exiting spouse.

As the housing market recovers, couples are, once again, facing the prospect of dividing equity within their home as part of the marital property distribution. Do you have questions about an issue surrounding the treatment of home equity? Contact a MN divorce lawyer with our firm for a free consultation.

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Effective Co-Parenting During (and After) Divorce

Nothing disappoints me more than family law litigants who think of their child as a pawn, placing them smack dab in the middle of the fight. There’s just no good reason for it. And, every expert I’ve encountered on the subject suggests that the parent who does so – even if they appear as the “hero” to the child in the moment – will suffer the consequences in the long run; the child will soon grow old enough to understand what was done to them.

Can it really happen? Can a child of divorce be well-adjusted? Yes. If the parents are prepared to work really hard to ensure it.

Here are some suggestions on effective co-parenting during (and after) divorce:

  • Keep the child in regular contact with the other parent, whether by phone, e-mail or video;
  • Maintain a predictable schedule for the child;
  • Promptly respond to communication from the other parent;
  • Exchange the child on time, avoiding controversial topics with the other parent;
  • Permit the child to bring special things to the other parent’s residence;
  • Maintain a routine that is relatively consistent with the other parent, including rules and discipline methods;
  • Encourage the child to maintain contact with extended family members on both sides;
  • Remain flexible for special events that are likely to come up on your “off” time;
  • Judges often encourage parents to treat each other in a “business-like” manner;
  • Respect the child’s activity and school schedule in planning vacations; and
  • If the other parent is getting on your nerves, bite your tongue and walk away.

I can share lots of war stories (another time) about the inappropriate things parents do to their children. As divorce often brings out the worst in otherwise good people, here are a few things to avoid:

  • Asking your child to “choose” between mom and dad;
  • Interrogating your child about their time at the other parent’s residence;
  • Criticizing the other parent;
  • Using your child as a therapist; and
  • Involving your child in information gathering.

In addition to the fact that your conduct will have a direct impact on the emotional well-being of your child, it is mission critical to “take the high road” for the sake of standing out (positively) to a custody evaluator or judge. Even if your spouse is acting like the world’s biggest idiot, the last thing you want to do is give the ultimate decision-maker the difficult task of deciding which parent is bad and which one is badder.

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Allocation of Income Tax Exemptions for Minor Children Following Divorce

One of the issues that divorcing parents have to tackle involves an allocation of the income tax exemptions for the minor children. Who claims who? This is a matter that should not be overlooked; tens of thousands of dollars in future tax benefits may be at stake. And, if both parents make the same claim in the same year, a phone call from the IRS is certain to follow.

According to the tax code, a parent who cares for the children more than six months out of the year is the parent who has the right to claim a child as a dependent.

Oddly, even though federal law trumps state law, Minnesota judges often award exemptions to parents who care for a child for less than six months out of the year. It is not uncommon for a non-custodial parent to be awarded the right to claim a child as a dependent. Judges often cite the notion that both parents are liable for supporting the children and, therefore, both parents should be able to realize the economic benefits located within the tax code.

If the parties have an odd number of the children, the exemptions are often allocated so that each parent claims the same number of the children, with the remaining child rotated each year.

If the parties have an even number of children, the exemptions are divided equally, until the oldest child emancipates. Thereafter, most parties begin rotating the “odd” child.

In rather rare situations, the Court may allocate the exemptions on a year-by-year basis. Each tax season the parties must meet with the Court, with the task of demonstrating some tangible economic benefit in claiming an exemption. If one party realizes no benefit, and the other does, the Court is likely to award the exemption to the benefitted party for that particular year.

Many parents claim emancipated children as dependents on their income tax return, especially in situations in which a child is attending college. Once a child turns 18, the child (now an adult) may decide which parent will claim the dependency exemption. Or, the child may choose to claim themselves, for purposes of their own individual income tax return.

The fact that a custodial parent is often required to give up an income tax exemption isn’t necessarily a bad thing. Usually, a non-custodial parent’s right to claim such an exemption is contingent on being current in all child support obligations on December 31 of the relevant tax year. This added incentive can ensure that timely support payments are made.

Tax season is upon us. Do you have a question about the income tax exemptions related to your minor children? Our experienced divorce and family law attorneys are here to help. Call (763) 323-6555 for a free consultation.

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Some Simple Ideas to Help Protect Yourself During a Divorce

Many potential clients seek our advice in terms of protecting themselves at the onset of a divorce. They fear their spouse will take radical action in response to the dissolution process.

A trip to Vegas. Missing family heirlooms. Skyrocketing credit card charges. Disappearing cash. False allegations of domestic abuse. We’ve nearly seen it all.

Here are a few things to keep in mind if you want to protect your interests:

Personal Property: We often recommend taking a few minutes to document the contents of the marital homestead (including the garage) with a video camera. If items suddenly dissappear, you will have a tangible inventory to rely upon. You are free to remove any items of sentimental value, and may choose to store them at the home of a friend or family member.

Bank Accounts: We typically suggest removing one-half of the balances resting in joint checking or savings accounts, and placing those funds into a new individual account. While the law technically allows you to withdraw the entire amount, a judge may not look favorably upon doing so. All funds will ultimately be accounted for, but an early withdrawal will protect your cashflow by preventing your spouse from taking it all.

Retirement Accounts: Most retirement accounts are named individually, and need no immediate protection. However, if you have a joint retirement, or investment, account, it probably makes sense to notify the plan administrator, or broker, of the pending divorce. Withdrawals may be temporarily suspended, or require the signature of both parties.

Credit Cards: Best to contact joint credit card providers and reduce the line of credit, if possible. If the creditor will allow, joint accounts should be closed, with new, individual, accounts opened in the name of each spouse.

Interaction: Don’t position yourself for the issuance of an order for protection or harassment restraining order. While you are free to remain in the same home as your spouse, be cautious in terms of emotional interaction with each other. Walk away if things get heated. You sacrifice nothing by doing so.

Chemical Use: If your spouse abuses alcohol or drugs, you should document any evidence of use through photos, or retrieval, of the substances and paraphenalia. Document dates by placing the day’s newspaper next to the materials you photograph.

Online Accounts: Change all e-mail and social media account passwords. Both are increasingly used against litigants through unauthorized access. As important, remove inapporpriate photos or posts from sites such as Facebook, Twitter or Google Plus, and keep your ongoing uploads conservative.

Electronics: Keep your computer, tablet or smart phone away from your spouse. These items hold not only private information about you, but are likely to contain electronic correspondence to and from your attorney concerning case strategy.

Estate Planning: Many overlook the need to revisit their estate plan at the onset of divorce. A reputable estate planning lawyer can work with you to modify your will, power of attorney or health care directive. If left unaltered, your soon-to-be ex may receive more than you now wish.

Notebook: A description of specific dates, times and conduct can prove to be critical in the preparation for a custody evaluation or trial. Invest a few dollars in a small notebook to log everything that goes on in terms of parenting. You can also dedicate a section of the notebook to questions that are certain to arise throughout the divorce process. Write them down, and contact your lawyer when you have several that need answering. Getting answers to groups of questions can be more cost-effective than calling counsel everytime something comes to mind.

We hope you find these tips helpful. Honestly, the best way to protect your interests involves retaining a good lawyer to represent you. Our attorneys, with years of family law experience, offer free consultations to all potential clients. We invite you to call us at (763) 323-6555, or you may wish to contact us by completing our free online consultation form.

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The Process of Filing a Motion for Temporary Relief in Minnesota Divorce Court

As more and more counties adopt the early neutral evaluation model, fewer divorce litigants face the prospect of a motion for temporary relief. A decade ago, nearly every party to a divorce would seek some sort of temporary order from the judge, given the fact that few alternatives were available for immediate structured debate and discussion concerning issues like custody, parenting time, child support, property division and spousal maintenance.

Because traditional litigation and the early neutral evaluation process are inherently inconsistent with one another, litigants must choose whether to seek a motion for temporary relief, or participate in the alternative dispute resolution model. For the vast majority of our clients, we recommend participation in a financial early neutral evaluation or a social early neutral evaluation, or both.

However, there are limited circumstances in which an early neutral evaluation is not appropriate. These cases can include situations involving domestic abuse, or the dissipation of marital assets by one of the parties.

In seeking a motion for temporary relief, we begin by filing a notice of motion and motion. This formal notice sets forth the specific relief that our client is seeking, and indicates the time and place of the relevant hearing.

The Minnesota Rules of Family Court require the parties to submit an affidavit in support of their motion. Motions are typically decided by the court on paper only, without testimony from the parties. As a result, significant time is devoted to the preparation of this sworn written testimony from our client. We also attach all the relevant exhibits that support the claim(s) of our client.

In addition to the affidavit of our client, we often include supplemental affidavits from third parties. They may include statements from friends, family members, or daycare providers who have direct knowledge and information concerning the situation that the parties are involved in.

Finally, the court requires the parties to submit a financial disclosure form. This form discloses all of the relevant assets and liabilities of the marriage, along with the relevant income and budgets of each party. It gives the court a snapshot of the financial position of the litigants.

Once all the relevant documents are drafted and executed, we serve them upon the opposing litigant, or his or her lawyer. This must be done at least 14 days ahead of the hearing date. They, then, have an opportunity to offer a written response of their own.

Typically, motion hearings do not involve any sort of testimony from the parties. Instead, the lawyers will argue the motion based upon the written affidavits that have been submitted.

On rare occasions, the court will issue a decision right from the bench. More often, however, the court will take a week or two to think about the situation, and offer a written opinion by mail.

Have further questions about a motion for temporary relief in family court? We’re happy to speak with you free of charge. For meaningful answers, contact our Minneapolis divorce attorneys at (763) 323-6555.

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Minnesota Family Law Appeals: Factors in Deciding Whether to Appeal a Divorce Decree

There are situations when a party (or both parties) to a divorce will disagree with the decision made by the district court judge. The remedy? Filing an appeal with the Minnesota Court of Appeals.

Success on appeal can be quite difficult. Statistically, about 85% of all appeals fail. Still, with so much at stake, many litigants see no option but to pursue a reversal of the decision of the lower court.

If any of the following questions are answered in the affirmative, you stand a good chance on appeal:

  • Were legal principles ignored when the judge’s decision was made?
  • Was the judgment, or discretion, of the court abused?
  • Was credible, and significant, evidence ignored by the district court?

The Minnesota Court of Appeals will hear family law appeals as a matter of right – as opposed to the Minnesota Supreme Court, which picks and chooses the cases they wish to decide.

Appeals are procedurally challenging; there are strict rules and guidelines that have to be followed by all parties, right down to the color of the legal brief cover. Critically important, the appeal must be filed within certain number of days after the original judgment is entered, or the Court of Appeals will not consider it. In family court, the timeline for appeal is 60 days from the date of entry of the Judgment and Decree.

Keep in mind that the original decision of the court will not change unless, and until, the appeal is successful. The court, however, may issue a “stay pending appeal,” which means that no decision is in effect until the appeals process is completed. To obtain such a stay, the following must be proven:

  • The original decision could bring irreparable harm if the judgment is enforced; and
  • The appeal is based upon a meritorious issue and is likely to be successful.

Sometimes “success” on appeal results in a remand back to the district court. This means another trial, or hearing, must occur before the same district court judge, who must consider the guidance of the Minnesota Court of Appeals in its decision. Many litigants find this frustrating, in the sense that it can be quite time consuming and expensive.

The good news is that the Minnesota Court of Appeals has adopted a mandatory mediation program for all family law appeals. To the surprise of many, this program has resulted in a settlement success rate of about 50%. That statistic is quite shocking, given the fact that appeals, naturally, follow a trial – and trials involve a great disparity in the position of each party, not to mention raw emotion.

In the end, it can be difficult to determine whether or not to appeal a district court decision. We are here to help. For answers to all of your questions, contact our Minnesota family law appellate lawyers at (763) 323-6555. The call is free, and time is, literally, of the essence in deciding whether to file an appeal.

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Our Family Wizard: An Online Resource for High Conflict Divorce Litigants

Many of the cases we handle involve a high level of conflict. Our Family Wizard is a fantastic online tool to help streamline the process of parental communication during, and after, divorce.

Our Family Wizard is an online messaging and calendar system that can be monitored by the court, or a parenting time expeditor or parenting time consultant. This “supervision of communication” tends to keep parents from attacking one another, and keeps parenting time schedules in check. It’s a bit like the Google Calendar and Gmail system merged into one, with an emphasis on family relatonships.

Our Family Wizard can also be a great tool for children. They can be permitted to have an account, with limited access, so that they are able to review upcoming events, medical appointments or the time they are scheduled to visit a particular parent.

While Our Family Wizard serves a great purpose during divorce proceedings, it can also serve a continuing purpose for those parents that prefer to communicate effectively post-divorce. Many of the clients we represent utilize Our Family Wizard for years following their divorce, with terrific results.

There is a fee for the service offered by Our Family Wizard, but many find that the rewards outweigh the cost. As I recall, total fees are about $100.00 per year for each user. For less than the price of a pizza each month, you may just find some sanity.

Our firm has no direct tie to Our Family Wizard, and we are simply recommending use based upon the experiences of our clients. If you have questions about it, or any other divorce of family law issue, feel free to contact our Minneapolis divorce attorneys at (612) 767-4404.

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Offices in Champlin, Minnetonka and Minneapolis