Tag: Divorce Services

Definition of a Karon Wavier & Nice-Petersen Standard

In addition to the endless acronyms, some of which we have provided a key for in a previous blog post, you may hear your family law attorney use other terms which leave you scratching your head.  Sometimes these terms are actually names of previous court cases which have been heard by the appellate courts and changed the law in a particular area.

For instance, in a case involving spousal maintenance, your attorney may mention a “Karon waiver.”  This means that, based on a 1989 case that went to the Minnesota Supreme Court, i.e. Karon v. Karon, language can be put into your divorce decree which divests the court of jurisdiction to ever address the issue of spousal maintenance again.  Therefore, if you agree that there will be no spousal maintenance and you also have a Karon waiver, then neither spouse can ever come back to the court and ask for spousal maintenance in the future.  Likewise, if you agree to spousal maintenance of $500 per month for 5 years, then neither spouse can ask for the time period to be lengthened or shortened or for the amount to be raised or lowered.  You get what you agreed to and that’s it.  Period.

In a case involving a request to modify child custody, your attorney may discuss the “Nice-Petersen standard.”  This standard was established in a 1981 case, Nice-Petersen v. Nice-Petersen,  that went to the Minnesota Supreme Court and determined the threshold for obtaining an evidentiary hearing in a child custody modification proceeding is that the moving party must present sufficient evidence in affidavits, which the court must presume are true, to show that endangerment of the child has occurred.  If the moving party meets this standard, they are entitled to an evidentiary hearing, or trial, on the issue.

Our family law attorneys are well-informed on the current status of the key precedential cases in all areas of family law and will be able to advise you accordingly as to how they may apply to the particular facts in your case.  Please contact our firm today .

Basics on Minnesota Child Custody

Probably the most frequently asked question of Minnesota family law lawyers is how Minnesota child custody laws work.  Most clients want sole or shared custody of the children, but they’re not really sure how it works or even what that means.  The first thing you need to know about Minnesota child custody is that there are two kinds of child custody in Minnesota – legal and physical.

Legal Custody deals with decisions having to do with a child’s health care (including dental), religious and educational upbringing.  Legal custody is often simplified to: doctor, preacher, teacher.  In Minnesota child custody law, legal custody is presumed to be joint, requiring both parents to collaborate when making the decisions affecting their child’s development. While some Minnesota family lawyers may advise their clients that joint legal custody does not restrict one parent from unilaterally making legal custody decisions, the courts will often intervene, and may even penalize, a parent who denies the other legal custodial parent’s right to participate in the decision-making process.

If a court is considering joint legal custody between both parents, it must also consider factors placed in the statute that should be used to determine whether joint legal custody is advisable.  Specifically, the court will look at the ability of the parents to cooperate, if they have the ability to work together to resolve any differences they may have about the child or children, if it would be detrimental for one parent to have sole custody, and whether there has been any domestic abuse in the relationship between the parties.

Physical Custody deals with the routine daily care and control and residence of the child.  Physical custody is often simplified as, “where a child lays his or her head at night.”  Physical custody can rest with one parent as “sole” physical custody or with both parents who would then have “joint” physical custody.

A lot of parents believe physical custody also dictates visitation rights in Minnesota.  Visitation rights in Minnesota are actually referred to as parenting time, which has to do with the specific schedule each parent has with the child or children.  Parenting time is separate from custody and will be discussed in greater depth in a future blog.

Legal custody and physical custody in Minnesota can be determined by the court, but is more often determined through collaboration between the parents to develop a custodial arrangement that is in the child’s best interests and works best for each parent.  If you would like to determine legal and physical custody rights for your child, contact  us to discuss the specific facts of your case.

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.

Legal Term Glossary: What is Alimony?

 

Alimony, also referred to as spousal maintenance, is a term to describe the legal obligation of a spouse to provide financial support to the other spouse after separation or divorce.

The alimony amount, how it should be paid, and for how long are up to the judge hearing your case.  One of the main reasons for alimony is to ensure the same standard of life can continue for both parties after a divorce or separation.

For more information please visit our Alimony page. We at Wolf, Rohr, Gemberling and Allen P.A. have successfully worked with clients during divorce and separation proceedings in Minnesota.  Contact us today for a consultation regarding your family law dispute.