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.

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.

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.

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.

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.