Parenting Time and the Holidays

Child Custody, Parenting Time, and the Holidays

The holidays are usually a great time for children.  However there is one sure way to spoil a child’s experience.  When both parents are fighting, being petty over little things, and putting their wants first, the child will often lose.  This is true in general, but can be especially painful during what should otherwise be a joyous and happy time for the child.

The Parenting Time Trap

Holidays can often be a special time.  Along these lines, parents may place great importance on this time, and rightfully so.  However, because of this importance it’s easy to fall into the trap of believing that this is the time to dig in one’s heels and “assert my parenting rights”.

I’m not suggesting any parent should roll over to unreasonable demands to the other.  Nor should any parent facilitate contact that would put their children in danger.  With this in mind, here are some suggestions to make the holiday experience as best as it can possibly be when there are parenting time issues.

Ten Ideas for Holiday Parenting Time

  1. The best interests of the children should come first … always
  2. Holidays can be a great time to build the relationship between parent and child.  This goes for both parents
  3. Court-ordered parenting time schedules, which should include holiday provisions, are still the rule …
  4. … But flexibility can also go a long way towards building goodwill with the other parent and making it a better holiday time for your children
  5. Along those lines, building in some holiday time for each parent with the child is often the best strategy
  6. Understand that the other parent’s holiday decisions are sometimes based on family decisions, not just his or her own.  Sometimes he or she may not be able to control a schedule conflict
  7. Usually, each parent places the same amount of value and importance of spending holiday time with their children
  8. Usually the children, especially younger ones, place the same amount of value and importance of spending holiday time with each parent
  9. One side is not “losing” if they generously offer flexibility to accommodate what’s best for their children
  10. Lastly, if any disputes over these issues go to court, a judge is generally going to be very underwhelmed with the party behaving unreasonably and disregarding the interests of his or her children.  This may be especially true for behavior during the holidays.

Happy Holidays to everyone.  I hope no one has to deal with bad custody situations during this time.

Can I Get an Annulment in Minnesota?

The short answer, is probably “no”.  There seem to be a lot of popular misconceptions about annulments.  In particular, some believe that annulment is simply a convenient alternative to divorce and preferably a low-cost one.  This is simply not the case.

Divorce vs. Annulment

A divorce is different from an annulment.  A divorce is the legalized end of a valid marriage.  An annulment is a legal recognition that the marriage had some deficiency from the start and therefore will not be recognized as a marriage from the start. 

The reality is, in Minnesota there are only a few narrow circumstances in which you may be entitled to an annulment.  In Minnesota, there are two types of situation in which an annulment may apply.  There are “void” marriages and “voidable” marriages.

Void vs. Voidable Marriages

Void marriages refer to marriages that were never and can never be valid as a matter of law.  These fall into three types:

  • Same-sex marriages
  • Marriages with close blood relatives
  • Marriages when one party was still previously married

Most frequently I see this question pop up for the last situation.  Specifically, a later spouse discovers that their partner was married previously and had never been legally divorced.  In this situation, the latter marriage is automatically invalid in Minnesota.  The solution is to have the married party legally divorce and then remarry their second spouse.

Voidable marriages are those that will be allowed to continue, despite their deficiency, unless one party or the other challenges the marriage in a timely manner based on the deficiency.  Voidable marriages in Minnesota include:

  • At least one party was underage (less than 18)
  • At least one party was not able to consummate the marriage and the other party did not know of this at the time of marriage or
  • At least one party lacked capacity due to any of:

Incapacity due to being under the influence of drugs or alcohol

Mental incapacity

One party committed fraud or used force to compel the marriage

Annulment Conditions Usually Don’t Apply to Divorce Situations

The bulk of reasons for dissolving a marriage, like financial struggles, infidelity, disagreements regarding child care, or abuse don’t generally trigger the conditions needed for an annulment.  This is why divorce, not annulment, is almost always the proper course of action if one party wants to get out of a marriage.

Parents: How to Help Children Through a Divorce

Obviously a divorce is a significant loss to many of the husbands and wives who have to go through with it.  But even more so, divorces can affect the wellbeing, psychological health, and emotional development of children of a marriage.  The following are some ways in which parents can help minimize the negative effect divorce can have on their children.

Distinguish the Parent/Parent and Parent/Child Relationships

Remind the child that it’s not their fault.  Highlight the difference between the relationship between both parents and the relationship each parent has with the child. 

On a related note, continue to maintain an active and positive parent/child relationship after the divorce.  A child still needs this from both parents, even after a divorce. Emphasize that both parents will continue to love and care for the child.

Keep Divorce and Post-Divorce Conflict to a Minimum 

This may be the most important predictor of eventual outcome for the children.  Yes in many cases there are bitter, unresolved feelings between the parents.  These feelings often make it easy to fall into the trap of lashing out at the other parent or speaking badly of the other parent.  This is particularly harmful if it’s done in front of the child.  Generally, follow the age-old adage: “If you can’t say anything nice, don’t say anything at all.”

Often, a divorce resolved through alternative dispute resolution, like mediation, and coupled with a parenting plan agreement made by both parents can help reduce the sense of anger and “loss” associated with a full-blown divorce trial.  This can help the parents avoid much of the anger and resentment and make it easier to be at least civil with the other parent.   These alternative methods to trial are highly recommended in most cases.

Stand United, If Possible

Remember, parenting doesn’t end with the divorce.  In many children’s eyes their mother and father are a cohesive unit who they refer to as “my parents”, not necessarily “my mom” and “my dad”. 

Imagine the difficult choices a child may face if placed in a situation in which the child is keenly aware of the anger between both parents.  The child may often be worried about showing preference for one parent by showing affection to one first or more often.  Children should never have to make those choices.

Communicate Openly and Directly with the Other Parent

Parents should negotiate with each other regarding how they will resolve any parental disputes in the future.  This may involve some form of direct negotiation or alternative dispute resolution.  Generally, unless a child is endangered, going back to court should be a last resort of the parties.

In addition, communication should be direct between the parents whenever possible (situations with domestic abuse would be the notable exception).  Children should not be used as shuttle messengers between the parents.

You Don’t Divorce Your Children

Remember, you never stop being a parent.  A child deserves the best efforts of both parents to help them develop into an emotionally health and happy adult.

 

 

“You’re Ugly, I want a Divorce”

The Love Story turns “Ugly”

Man falls for woman.  Man and woman get married in China.  The happy couple conceive their first baby and enjoy nine months of marital bliss.  

Then the baby comes and there’s a problem.  The father finds the baby hideously ugly.  So ugly, in fact, that he can’t believe it came from him.  

Prelude to Divorce: Adultery or Something Else?

He’s immediately suspicious and begins investigating to figure out what happened.  It turns out, his wife was completely loyal and faithful to him during the marriage.  

However when they got married there was one thing she had kept from him.  She had previously received extensive facial plastic surgery, reportedly to the tune of over $100,000.

“What?  You aren’t really attractive?” –  Divorce Time

So, the husband filed for divorce on the grounds of “false pretenses”.  Interestingly, the false pretense in this case was that  the wife was genetically not as attractive as she appeared to be.  This led to the unexpected result for the husband of the “ugly” baby.

Now here’s the weird part.  The man not only got his divorce, but he successfully sued his wife for $120,000 in damages.  

Here’s one link to the story divorce story here, however it’s all over the internet if you’re interested in searching for more.

Don’t Worry, Divorce in Minnesota is not the Same

And for those of you out there like me who weren’t blessed to look like Brad Pitt or Angelina Jolie, don’t worry, looks are not grounds for divorce in Minnesota.  You only have to show there’s been an “irretrievable breakdown of the marriage.”

All joking aside, the take away message here: It’s a good idea to be open and honest about your marital relationship to avoid these kind of unpleasant surprises later.  Minnesota is a “no fault” divorce state, so the standard is effectively very low to get the actual divorce.

Guardianship and End of Life Decisionmaking

A few days ago an interesting case came out of Hennepin county.  See the article link: Guardianship and End of Life Case.  It involves a guardian who wanted to terminate life support from an incapacitated person.

Guardianship in Minnesota, What it Is

A guardianship involves two parties.  The ward, who is the protected person and the guardian who is the court-assigned protector of the ward.

The guardian is a “guardian of the person”.  In other words, they have the authority to make decisions about the ward’s life.  The guardian is to use this authority in the least restrictive way possible to the ward.  The guardian is entitled to make some health care decisions for the ward.

Guardianship and Medical Treatment

In the Hennepin County case, the judge ruled on the narrow issue of whether a guardian has the power to terminate life support of the ward.  The court ruled that a guardian does not have such a power unless the Minnesota legislature specifically grants it to him or her.

This is interesting for several reasons.  Generally probate court judges can make this decision.  Also, guardians can make many health care decisions for the ward.  However, there are some situations, like this one, in which the guardian may not act.

The Take Home Message: Let Others Know Your Wishes

It can be difficult to predict what a court will do in situations like this.  If you are concerned about having your wishes honored, you should prepare all the necessary documents.  You will also want to let your family members and other people close to you know what your wishes are and where to find the documents.

In this case, the ward may have been well served by talking with his guardian and arranging a Health Care Directive.  He could have stated his end of life wishes and made sure they were honored.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

Help, I’ve Been Served With Divorce Papers

Divorce Service in Minnesota

It’s an awful feeling, especially if it’s unexpected.  A sheriff or random stranger comes up and calls you by name.  You respond, only to be handed an unfamiliar pack of papers. 

Inside, one says the court is giving you notice that a divorce proceeding has been started.  The second shows a laundry list of facts your spouse are claiming as true, even though you strongly disagree.  It then shows everything your spouse is asking the court to do, including divorcing you, getting your children, and getting your property.

The most important thing to do is keep yourself calm.  Carefully read over the paperwork.  You are given a period of time, in Minnesota it’s 30 days, to formally respond.  Keep in mind, in Minnesota you generally can’t stop a divorce.  If one party wants one, he or she is going to get it.  At this point, you’ve got two options.

Defending Yourself in a Divorce

Your first is to try to go it alone.  If there are no children involved, not a lot of assets or debt, and you feel like you and your spouse can be agreeable, this can make a lot of sense.  You can keep your costs relatively low, make the process go more quickly, and hopefully easily move on with both of your lives.  The Minnesota Courts website have a lot of forms and instructions available if you want to try it yourself, including their self-help “I-CAN” service: Minnesota Family Court Self-Help Site

However, often there’s a lot more at stake.  You love your children and the idea of them not living with you or you not being able to make decisions for them is a scary proposition. 

In addition, especially if you’ve been married for a long time there often will be significant property (and possibly debt) accumulated during the marriage.  You want to protect your rights to the property and not to take on more than your fair share of any marital debt.

Getting a Divorce Lawyer Helps Level the Playing Field

As a general rule, the more issues at stake, the more complex the case, and if your spouse has an attorney (you’ll know from the original service paperwork), you will want to strongly consider getting a family law attorney to help you. 

If your spouse is working with an attorney and you are not, you will effectively be handicapped during all of the proceedings and when attempting to assert your rights.  Judges are not allowed to take sides to help level the playing field.  It is very possible you will not walk away with a fair shake.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

 

Separation and Divorce: Cultural and Socioeconomic Data

Different Trends with Separation and Divorce

A research study at Ohio State University  released last week revealed interesting research regarding separation and divorce rates.

The study followed over 7,000 people from 1979 until 2008.  The participants were interviewed every other year from 1994 to 2008.  Some interesting findings:

  • 49% percent of participants left their first marriage during the study
  • 60% of those individuals had gone through a marital separation
  • 80% of these separations ended in divorce

It’s important to clarify that “separated” in the study simply meant living apart.  This is different from a “legal separation” which requires a court hearing.  A legal separation involves a division of property and spouses living separately, however does not legally divorce the parties.

In addition to looking at general divorce patterns, the study also examined differences between those who legally divorced and those who just separated.  Historically, a legal separation has been a viable option for those with religious beliefs which disapprove of divorce.  However, this study did not show a difference in separation rates among those in different religious groups.

The Demographics that Relate to Separation vs. Divorce

In contrast, almost 75% of those who separated and stayed that way or who separated then reunited were black or Hispanic.  Those who separated also tended to have more children than those who divorced.  In addition, “In every measure we had, including family background, income and education, those who remain separated are more disadvantaged than those who are divorcing,” Zhenchao Qian, one of the researchers, said.  Based on this Professor Dmitry Tumin, study co-author, concluded, “Long-term separation seems to be the low-cost, do-it-yourself alternative to divorce for many disadvantaged couples.

Lastly, divorce proceedings include child custody, child support, spousal maintenance (alimony), and property division rulings.  Without these, individuals may have difficulty enforcing their legal rights or get the benefits they need from their spouse/ex-spouse.  Unfortunately, those without sufficient means, knowledge, or confidence in the legal system may not do what’s needed to protect these rights.  Legal help services are available in Minnesota for those who need it.

Picking someone you “Trust” for Estate Planning: The Sad Cases of Elder Exploitation

Elder Financial Exploitation: Undermining Estate Planning

Ward Knutson was entrusted to help his mother with her estate planning needs.  Instead, Mr. Knutson allegedly stole over $800,000 from his mother, Doris Knutson, 87, for his personal benefit.  This reportedly included supporting his gambling habits, phone sex,  and luxury cruises.  Mr. Knutson was recently convicted in Hennepin County District Court and sentenced to pay over $100,000 in restitution and to server 20 years of probation.  Mr. Knutson only avoided a prison sentence because the judge wanted to give him the opportunity to pay his mother back.

The stories are too familiar.  They seem to pop up almost daily.  An often vulnerable elderly person selects a family member who they trust to administer their financial or personal affairs.  These cases highlight the importance of both properly drafting legal documents and obtaining oversight regarding how they are administered.  But perhaps most important of all, it underscores the importance of selecting someone you trust and who will work with your best interests in mind.

Estate Planning Documents and the Persons You Appoint

The trust issue is especially relevant if you’re considering creating any of the following:

  • Will (you’ll appoint a personal representative)

  • Trust instrument (you’ll appoint a trustee)

  • Financial power of attorney (you’ll appoint an attorney-in-fact)

  • Health care directive (you’ll appoint a health care agent)

In all of these estate planning situations you may be appointing someone to handle your affairs.  Whether as a primary fiduciary or as an alternate, it’s critical to pick someone you can trust.  Don’t take the decision lightly. Consult family and friends you trust, financial professionals, and an attorney.  These individuals will help you both personally and legally examine all of the relevant factors to your situation.  This will allow you to make the most informed choice possible for how you manage your affairs.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

No Will, but a Way … Same-sex partner gets inheritance

This November a voter ballot will be held in Minnesota to determine whether to pass a State Constitutional amendment that defines marriage as only between a man and a woman. Amidst this backdrop, Thomas Proehl married James Morrison in 2008 in California.  While living in Minnesota, Mr. Proehl died in 2011 without a will.  The final judicial order can be found here.

In Minnesota, if there is no will or other estate planning devices, a spouse is normally first in line to take property.  However in Minnesota, which has adopted the Defense of Marriage Act (DOMA), same-sex marriages are not legally recognized.

The Case: Mr. Morrison “Wins” without a will

Hennepin County District Court Referee George Borer ruled that Minnesota’s DOMA law does not prohibit same-sex partners the right to inherit.  So, Mr. Morrison “won” in the sense that he did finally get property rights.

However, he spent over a year muddled in the court system, wasting his time and money.  His personal business was aired out publicly, whether he liked it or not.  And perhaps most importantly, he had to go through all of this in an uncontested case.  In other words, no one was opposing Mr. Morrison’s claim on the property and he still had to endure significant legal roadblocks.

The purpose of this piece isn’t to make any kind of statement one way or another regarding same-sex marriages.  Instead, this is just another example of unexpected problems that can arise when individuals don’t make an adequate estate plan. 

Whether it include a will, the proper trust instruments, a health care directive, a power of attorney, or any other transfer on death documents, a properly drafted estate plan is critical to help your successors avoid these kinds of transfer problems.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

Minnesota Trust Account Dispute: Three Little Words and 4.3 Million Dollars

The Supreme Court of Minnesota, the highest court in the state, recently delivered its opinion* on an eleven year-long dispute.  On one side of the legal dispute was the deceased wife’s widowed husband who served as the personal representative of his wife’s estate.  On the other side was the trustee of a revocable trust account the wife had set up before she died.

The Trust Account: $4.3 Million

The major issue before the court was whether language in the trust compelled the trustee to pay off the wife’s legal debts.  The trust contained over $9 million in assets at the time of the wife’s death.  Her debts totaled over $4.3 million.  Over the eleven year process, the issue bounced around courts of several states.  The parties were unsuccessful in reaching any settlement agreement.

The Trust Account: “My legal debts”

The trust contained a provision that read that it should be used to “pay … my legal debts.”  The court conducted an extensive analysis of “my legal debts”.  This included how the phrase tends to be used in wills and trusts.  The court concluded that the trust language did not compel payment of the debts from the account.  The husband lost and could not use the trust assets.

This case demonstrates, among other things, the importance of even small details in drafting estate-planning documents.  It also shows  how important it is to make every effort to make sure one’s wishes are clear and the language used in estate planning documents accurately reflects those wishes.

 Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

* – See “In the Matter of: The Pamela Andreas Stisser Grantor Trust Under Second Amendment and Restatement of Trust Agreement dated June 6th, 2001” – Filed August 1st, 2012, A101646.  Link to the text of the case can be found here.