Author: mnfamilylaw

Responsibilities of a Guardian Ad Litem

Sometimes there are more parties in a Minnesota child custody case than just the mother and the father. Sometimes the court will appoint a Guardian Ad Litem (GAL) to represent the interests of the child and advise the court with respect to custody and parenting time.  Sometimes this appointment is mandatory, such as in cases where the court has reason to believe the child is a victim of domestic abuse or neglect, and sometimes this appointment is only permissive, meaning the court can, but does not have to, appoint a GAL.  Due to budget constraints, permissive appointments are becoming less available.  Obviously, some counties have more resources available than others.

Pursuant to Minnesota statute §518.165, subd.2a, when a GAL is appointed to a Minnesota family law case, the GAL has the following responsibilities:

1)  to conduct an independent investigation to determine the facts relevant to the situation of the child and the family; this investigation must include:

  • reviewing relevant documents;
  • meeting with and observing the child in the home setting and considering the child’s wishes, as appropriate; and
  • interviewing parents, caregivers, and others with knowledge relevant to the case.

2)  to advocate for the child’s best interests and for appropriate community services;

3)  to maintain confidentiality of information;

4)  to monitor the child’s best interests throughout the proceedings; and

5)  to present written reports on the child’s best interests.

The information gathered and presented to the court by the GAL is very persuasive.  The court is likely to order something substantially the same or similar to the recommendations of the guardian. To discuss whether appointment of a Guardian Ad Litem might be appropriate in your case, our Minnesota family lawyers can offer you a consultation.

Joint Legal Custody and School Choice

What happens when you have joint legal custody and you disagree with your ex about where your child(ren) should attend school?  Legal custody is the right to determine the child(ren)’s upbringing including education.  Having joint legal custody means that the parties have equal rights and responsibilities to participate in the major decision making regarding the child(ren)’s education.  If you have joint legal custody this means that any changes regarding a child(ren)’s schooling need to be agreed upon by both parties.

Often disputes arise when it is time to enroll a child in Kindergarten or when one parent moves and neither party resides within the school district that the child(ren) were attending.  If both parents are unable to agree, then a motion must be filed in District Court to have a judicial officer make the decision.

The Court of Appeals has held that, in Minnesota, the District Court is to consider the best interests of the child found in Minnesota Statute §518.17.  Since these factors pertain mostly to custody determinations, the District Court is also permitted to consider other factors that they deem relevant.  The District Court cannot simply chose the school choice of the parent with sole physical custody without making a determination that it is in the best interest of the child.  In the situation where one parent has sole physical custody, the sole physical custodian does not have the power to unilaterally decide where the child(ren) should attend school.  The Minnesota child custody attorney’s at Wolf, Rohr, Gemberling and Allen P.A. will help you gather the necessary and relevant information to assist the District Court in making the appropriate decision for your child(ren).

Our family law attorneys at Wolf, Rohr, Gemberling and Allen P.A. are experienced in litigating issues of school choice in District Court and appealing school choice decisions to the Minnesota Court of Appeals.  If you are experiencing a school choice disagreement, call our office for a consultation.

How to Divide Property in a Divorce?

A question often posed of divorce lawyers in Minnesota is “How do we divide the property?”  Most property which a husband and wife accumulate during their marriage is considered marital property and, thus, needs to be divided in a divorce decree.  However, some property is considered non-marital, meaning it belongs to one spouse but not the other.

Property can be non-marital even if there wasn’t a prenuptial agreement.  This could be property which one spouse brought into the marriage.  Typical examples of this are:

1)      A house one party purchased prior to the marriage or

2)      A retirement account started prior to the marriage.

Often these types of assets have both marital and non-marital components.  Many times house payments or contributions to the 401k were not just made prior to the marriage but were also made during the marriage.  Therefore, Minnesota family lawyers need to establish the value of these assets at the time of the marriage and the value of the assets now.  Only the marital portion needs to be divided.

Non-marital property could also be asset which was gifted to or inherited by one spouse.  As long as this inheritance was not co-mingled with marital funds (an example of co-mingling would be if a $10,000 gift from Aunt Margaret to husband was put into the joint checking account and used to pay the family bills), it will retain its non-marital status.  However, whenever one party asserts that an asset is non-marital, it is the burden of that party to provide evidence that the property is, in fact, non-marital.  This means tracing where the asset came from and showing everything that has happened to it since.  Your family law attorney can help you gather the information you need to do this.

If you have questions specific to your case, please contact us for a family law consultation.

Child Support Calculator – What is the Cost of Child Support?

The following child support calculator is based off of the guidelines set forth by the Minnesota Child Support statute, effective January, 2007.  The calculator does not necessarily reflect a court ordered liability, but is intended as an informational resource.

Information that you will need to obtain to use this calculator includes, but is not limited to, the following:

  • Each individual’s gross monthly income
  • The number of children present in each parent’s home
  • Existing spousal maintenance orders (if applicable)
  • The monthly cost of child care, health and dental coverage
  • The amount of court ordered parenting time
  • The amount each parent is currently paying in child support, for another child (if applicable)

Determining child support responsibilities can be a challenging assignment for any party, which is why we recommend hiring an experienced family law attorney to facilitate in these matters.  The attorneys at Wolf, Rohr, Gemberling and Allen, P.A. can advise you as to whether a deviation from the guidelines may be appropriate in your case.  For more information regarding child support, visit our Child Support FAQs page, or contact our MN Famil Law Firm today.)

The Dangers of Facebook in Child Custody Battles

Facebook has completely changed the way we share information, in both positive and negative ways.  It has allowed people to stay connected with old friends, but it has also allowed others to obtain information about us that we didn’t intend.  One area in which we are seeing the potential negative side effects of social media involves child custody.

How Facebook is used in Child Custody Battles

Believe it or not, Facebook has become a big source of information for litigators in child custody battles – even more than emails and text messages.  In a story reported by WTSP, one Tampa Bay, FL attorney reported that 90% of recent family law cases involved some social media activity.  The reason for this is that what you post online, or what others post about you, is documented evidence of your offline behavior, and can be used in court.  Often times this involves questionable photos, comments or other behavior that questions whether or not someone is a suitable parent.

Use Social Media with Caution

Everyone has done something embarrassing in his or her life, and the addition of Facebook has made many of these moments even more memorable.   But Facebook can be used to highlight the positive moments in your life as well.  Here a few tips on how to use Facebook responsibly:

  • Always remember that Facebook is public information.
  • Only post what you wouldn’t mind everyone in the world to see.
  • Never post something in the heat of an argument.
  • Don’t post anything that could offend others, or could be misunderstood.
  • Share only positive information.

At the law firm of Wolf, Rohr, Gemberling and Allen, P.A. we are here to represent your best interests.  For more information on how your needs will be represented, contact our MN Family Law Firm today.

When to Consider a Prenuptial Agreement

Prenuptial agreements are not an easy topic to discuss with a future spouse; however it’s important not to forget that marriage also constitutes a legal contract.  In the unfortunate event of a divorce, it will potentially be up to  a judge, who doesn’t know you or your family, to decide how shared assets and debt are divided.  In this blog post we have highlighted several things to consider when deciding whether or not a prenuptial agreement is the right decision.

  • Income Differences – A substantial difference in income between the two parties is often a common reason for considering a premarital agreement.
  • Property Ownership – Property owned by a spouse prior to marriage could become jointly owned through marriage if not properly protected in a Prenuptial Agreement.
  • Children from A Prior Marriage – There may be children from a prior marriage that need to be financially taken care of in the future.
  • Financial Debt – Debt owed prior to the marriage by one party can become a shared responsibility through marriage.  If there is a substantial amount of debt by one spouse, then it may be a good decision to address this issue before marriage.

At Butler & Allen, P.A. we have experience helping families plan for their future financial security.  For more information about how we can help your family too, contact our MN Family Law Firm today.

What is a Parenting Plan?

In another post in our Defining Legal Terms Series, we help you to understand what a Parenting Plan is and why it is important to child custody matters.

A Parenting Plan is incorporated into your decree and addresses the agreed approach the parents will take while raising their children even though they live separately.  Parenting plans were created in hopes of reducing conflict between parents.  It often addresses fine details the parents agree on rather than just a schedule.  For example it can outline:

  • Procedures to follow when a child is ill or injured;
  • Restrictions on where parents may live;
  • Bedtimes, homework routines, when children can see R-rated movies, or other rules that create a united front in each home;
  • Procedures for how extra-curricular activities will be chosen;
  • Contact with extended family;
  • Communication methods.

Parenting plans can be as short or as detailed as the parents like.   We can help you draft the Parenting Plan that best fits your family’s needs.

If you would like to talk to one of our Family Law Lawyers about drafting a Parenting Plan, or regarding any other child custody questions please call us at 651-228-0720 or fill out our online contact form.

Parenting Resources in Minnesota

If you are a parent in Minnesota, please be aware of the many family education programs available to you and your family.  A simple search for “Parenting Classes MN” can give you in seconds resources such as parenting classes in Minnesota, parenting support groups, and workshops for families struggling with divorce or separation.

Because parenting is such a personal topic, you may feel nervous or embarrassed to ask for help.  With the number of resources and communities out there however, you should embrace new ideas and group sessions.

We work with families dealing with an array of different family law issues and are able to tailor our experience and knowledge to your case.  We want the best outcome for your family and often services such as parenting classes or mediation are a step in the right direction.

Please contact our St Paul family law office if you have a case you would like to discuss with one of our attorneys.  651-222-6341.

 

Mandated Parent Education in Minnesota

When filing for a divorce in Minnesota, you are required to attend an education program.  The class “Parents Forever” is offered through the University of Minnesota Extension and you can find the class listings here.  The classes are available throughout the metro area and range in price from $50-$90.

These classes are designed to give the parents tools to help their children through the divorce.  The class teaches parents about the impact of divorce on children and how as a family you can find an agreeable way to move forward with your lives.  More information on the “Parents Forever” program can be found at their website here.

At Wolf, Rohr, Gemberling and Allen P.A. we want to work with your family to find the best resolution and to make sure both parties are compliant in divorce requirements, such as parent education classes.  Contact us today to learn more about our Family Law Attorneys and get a consultation.

 

Legal Terms Defined: What is ICWA?

Indian Child Welfare Act (ICWA) is a federal law which protects Indian children who are members or eligible members of a federally recognized tribe.  The law allows the child’s tribe to be involved in the child’s case to help keep the community stable and to help eliminate the removal of children from their homes and then placing them in public and private agencies.  The tribe may intervene in the case and petition the case be moved to the tribal court.

To find more information on the ICWA law please visit their website here: http://www.nicwa.org/Indian_Child_Welfare_Act/faq/