Minnesota Family Law Archives

Served With (or Serving) Divorce Papers? Time to Review Your Estate Plan

In Minnesota, a divorce commences upon service of a Summons and Petition. The Summons includes a "mandatory restraining order," ordering that neither party may dispose of any asset except: (1) for the necessities of life or for the necessary generation of income or preservation of assets; (2) by an agreement in writing; or (3) for retaining counsel to carry on or to contest the divorce. All insurance coverage must be maintained and continued without change in coverage or beneficiary designation. Your family court judge can modify these restraints, but only after a motion is filed.

Living With Your Significant Other? Think About a Cohabitation Agreement

My estate planning colleagues regularly ask me about the legal rights and responsibilities between cohabiting adults. Since more and more people are living together, and even having children together, without getting married, this issue will continue to increase in important. Before you begin cohabitating with someone, it is important to understand your rights and responsibilities under the law, and to understand the additional legal rights you could obtain by properly drafted Cohabitation Agreements or other legal documents.

The Lautenberg Amendment

In 1996 Congress passed 18 U.S.C 922(g)(9), also known as "the Lautenberg Amendment." This prevents any person "who has been convicted . . . of a misdemeanor crime of domestic violence" from possessing any firearm or ammunition. In nearly every such conviction, this also results in such a person being prohibited from serving in the military, or any career field which includes weapons.

Retirement Assets In Divorce

In many divorce cases, the most valuable assets of the "marital estate" are the parties' retirement assets. These can account for tens to hundreds of thousands of dollars of value. This article is a primer on this subject matter, summarizing (1) what forms these retirement assets commonly take, and (2) how spouses can approach a division and distribution of their retirement assets in divorce.

Dividing the Farm: Using Options to Rent and Options to Buy When Farmland Has to Be Transferred

Farm divorce cases in Minnesota are extremely complex. In addition to understanding how to equitably divide marital and non-marital assets, Minnesota farm divorce lawyers must understand the farm business, accounting and tax issues, as well as banking and finance principles.  Many farm divorces require a significant understanding of business transactions and valuations, as well as an understanding of secured transactions and the Uniform Commercial Code. 

Spousal Maintenance and the Minnesota High Net Worth Divorce

When most divorces in Minnesota end, neither party is able to maintain the "marital standard of living."  This happens because, not surprisingly, most people do not have a lot of money left over after payment of expenses while they are married and that issue only gets worse when the bills effectively double.

What Part of Your Asset is Protected by an Antenuptial Agreement

In Minnesota, antenuptial agreements (also called "prenuptial agreements" or "preunps") are useful tools for a number of reasons. One such use is to protect assets acquired before marriage. But depending on the language of the antenuptial agreement, not all of the asset may be protected from division in divorce. Law schools teach that property should be looked at as a "bundle of sticks." Each stick represents a certain component associated with the property--for real property, such "sticks" include the rights to sell, build, and obtain income, etc. These rights are divisible and can be sold or leased separately. Property brought into a marriage has different components too. For example, stock in a corporation owned before the marriage includes the value of the stock at the date of marriage, any appreciation or increase in value of the stock, and any income (typically in the form of dividends) derived from the stock. In the absence of proper language in the antenuptial agreement, the increase in the value of the stock through "marital effort" and the dividend income (even if reinvested in more company stock) would be marital and divisible in a divorce setting. Sometimes this is done intentionally in the antenuptial agreement, but sometimes it the unintended consequence of a poorly worded document. Now, if the stock is in a public corporation and you don't work there, it is unlikely that the appreciation in value of the stock owned before marriage is through "marital effort." But if the stock is in a family business which you work at, your spouse may very well be entitled to some of that appreciation. When discussing an antenuptial agreement with your lawyer, consider discussing the following in detail: 1. What property that I own today will and will not be divided if I divorce? 2. Will the income from that property be divided or not? 3. Will the appreciation in the value of the property be divided or not? 4. Will it matter whether the appreciation is through marital effort or not or whether the appreciation is "passive" or "active" appreciation? Your attorney should be able to answer all of these questions and advise you as to how the antenuptial agreement will be likely be interpreted upon enforcement, as well as whether or not it makes sense to try to include or exclude some of these "sticks" in the document. Andrew M. Tatge is a partner and chair of the Family Law and Divorce Practice Group at Gislason & Hunter LLP (www.gislason.com). He regularly represents farmers, business owners, professionals, and other high earning and high net worth individuals (or their spouses) in divorce and related actions. Andrew can be reached at atatge@gislason.com or (507) 387-1115. This information is general in nature and should not be construed as tax or legal advice.

Minnesota Supreme Court Weighs in on Child Support Calculation for Self-Employed Parents

On May 29, 2013, in the case of Haefele v. Haefele, the Minnesota Supreme Court reversed the Minnesota Court of Appeals and held that when calculating a self-employed parent's income for purposes of determining child support, the court must first identify the self-employed parent's business's total gross receipts, costs of goods sold, and ordinary and necessary expenses, regardless of whether any business funds have been distributed or are available to that parent. This is the starting point for a district court analyzing a self-employed parent's cash flow to determine child support.

A New Frontier in Minnesota Family Law - Deciphering Minnesota's Marriage Equality Bill

On May 14, 2013 Minnesota officially became the 12th U.S. state to approve same sex marriage when Governor Mark Dayton appeared before a crowd outside the state capitol in St. Paul to sign a marriage equality bill into law. HF 1054 makes Minnesota's marriage law gender neutral. The legislation also contains language for exemptions based on religious association in response to the argument made by some religious institutions that they will be penalized for honoring their religious beliefs and not marrying same sex couples.  The Bill was passed by the House on May 9, 2013, and the Senate on May 13, 2013.  The law goes into effect August 1, 2013 - on that date the first lesbian, gay, bisexual and transgender (LGBT) couples will be allowed to take part in legally recognized marriage ceremonies.

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