Family Law and Divorce Discussion - Minnesota and Wisconsin

Divorce, Custody, Child Support, Restraining Orders, OFP 
 

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	Subject NEW BOARD Date Wed Feb 27 2013 10:54 Author Maury D. Beaulier (maury@beaulier.com)
Occasionally we must delete our discussion content and create a new board to speed up the load times. Please post your family law discussions here for a response from our attorneys or call 612-240-8005 for a consultation.

	Subject Order for Protection Date Wed Feb 27 2013 10:55 Author Matt
My ex girlfriend has filed for an Orde for Protection I have been told that I should just agree with no findings. We are just starting a custody case for our child. Will this affect my case? What should I do?

Subject Domestic Abuse and Custody Date Wed Feb 27 2013 10:56 Author Maury D. Beaulier

Your question is a complicated one. An Order for Protection may certainly affect a custody case. How you proceed may depend on the facts of your case and whether the children are included under the restraining order. First some background, an Order for Protection (OFP) is a restraining Order that is sought where abuse or threats of abuse are alleged. Often, such proceedings are improperly used as a vehicle when divorce or custody is contemplated to have a spouse removed from the family home and/or to seek advantage in a subsequent custody proceeding. Once entered, they place a Respondent at risk to be charged criminally if any violation is even alleged by the other party. Only the Respondent is limited by the OFP, whereas, the Petitioner is not. In addition to possible criminal ramifications for a violation, the impact and effect of an Order for Protection should not be underestimated with regard to other proceedings. The Minnesota custody statute 518.17 includes a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. That provision is often interpreted by courts as meaning that the person who is found to have committed an act of abuse, should not be granted custody. Similarly, the Domestic Abuse Statute also states in Subd. 17 that a finding of domestic abuse may impact a custody proceeding stating – “in a subsequent custody proceeding the court must consider a finding in a proceeding under this chapter or under a similar law of another state that domestic abuse has occurred between the parties.” In other words, you cannot later contest that domestic abuse has occurred if the Court makes such a finding as part of an Order for Protection proceeding. This is significant because, an Order for Protection contested hearing must occur very quickly (usually within 7 to 14 days). This provides little time to contact potential witnesses or to prepare a defense. Moreover, the Courts time to hear such matters is often limited and, all too often, Judges will limit the time allowed for the hearing or the limit the testimony given by witnesses. Such proceedings stand in stark contrast to divorce and custody proceedings where, often, experts are employed to investigate the facts in the form of custody evaluators, Guardian Ad Litems or psychologists. Investigations in custody and divorce cases may span months where in an Order for Protection, a dispositive hearing occurs within weeks. Clearly, professional, experienced and aggressive preparation for an Order for Protection proceeding is necessary. The stakes are high when an Order for Protection is sought. Any defense against an Order for Protection begins with the definition of “abuse” under the statute. “Domestic abuse” is physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members. Minn.Stat. § 518B.01, subd. 2(a) (1992). “[I]nfliction of fear” in the statute implies that the legislature intended that there be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm. Kass v. Kass, 355 N.W.2d 335, 337 (Minn.App.1984) (emphasis in original). An oral threat, depending on the words and the circumstances, can also demonstrate “infliction of fear of imminent physical harm.” Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn.App.1987), pet. for rev. denied (Minn. Aug. 19, 1987). An Order for Protection also requires more than a showing of past abuse. The petitioner must also show “present intention to do harm or inflict fear of harm.” Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn.App.1989) (citing Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App.1986)). You must consult with lawyer regarding your particular case. Maury D. Beaulier is an attorney located in Minnesota who is highly regarding in cases of divorce and child custody. He has been described by clients as aggressive and affordable.

	Subject Divorce in Hennepin County Date Thu Feb 28 2013 10:29 Author Anonymous
I am seeking a divorce. We do not have any children, but have not been able to reach an agreement. I lost my job two months ago and cannot afford legal fees. What do I do?

	Subject Unbundled Services Date Thu Feb 28 2013 10:30 Author Maury D. Beaulier
You may file a request to proceed In Forma Pauperis which would waive the filing fee if you qualify financially. You may wish to try mediation to reach a resolution of the issues. We also offer unbundled services where we will provide services, including drafting necessary documents, for a flat fee rather than full representation. Call 612-240-8005.

Subject College Fund Mn. Date Thu Mar 7 2013 09:32 Author R wilson (luvfxncars@msn.com)

Enter your message here.During the divorce we found $80,000.00 dollars hidden in a old college fund we set up for our kids. So i said fine that money will be used for that.Courts ordered ex to give monthly statements to me on how the funds were disburse. Never seen one statement or disbursement of any kind.The kids didn't attend much college mostly community college.I figure there's still over $70,000.00 still in the account. How do i get some of that back.

	Subject COLLEGE FUND Date Mon Mar 11 2013 09:43 Author Maury D. Beaulier
Your order would have to be reviewed to determine what the terms were included in the Order. In most cases, the funds would be in trust for the chdilren and payable to them for college or, if there was no college, for other expenses. For a review of your case and Order call 612.240.8005

	Subject child support Date Sat Mar 9 2013 15:15 Author mom
mn. Can ex use my money for support I got from a settlement from a personal injury case?

Subject CHILD SUPPORT Date Mon Mar 11 2013 09:43 Author Maury D. Beaulier

First, I assume you are referring to child suport rather than spousal support. The answer depends on many things including whether child support was previously determined and whether it was based on full time income, whether the child has any extraordinary expenses related to medical or developmentally issues and to her factors. Generally, all financial resources may be considered in a child support case. It is presumed, however, that child support should be based on comparative gross income so long as the parent is not self limiting their income in some fashion. For a review of your matter call 612.240.8005.

	Subject Carver County Corruption Date Wed Mar 13 2013 04:56 Author Mom
Why do you think courts always want to pick a winner and a loser in family court battles ?Is it the inherent training of Judges to find criminals guilty or not guilty ? Do they receive any training on the social side of family dynamics? Been through the meat grinder we call our family court system.They have left both parents broke.Carver County is the worst.

	Subject Adversarial System Date Wed Mar 13 2013 10:22 Author Maury D. Beaulier
Most Judges do receive training in family dynamics and family law matters. However, our statutory system is designed as adversarial which is the primary problem. Even if that were not the case, there is sufficient fault to go around. You cannot force parties in a divorce to get along or make agreements and, ultimately, they control how a case proceeds.

	Subject pre divorce Date Fri Mar 15 2013 11:34 Author Dad
MN. here. Ex filed a motion for child support and I have not got any papers for divorce yet. Question is can I have a Statute for this question? We have a truck that is in both our names and she has another truck in her name. She keeps telling me she is going to take my truck and sell it. I would like to know where I stand on keeping it.

Subject Need More Specificity Date Fri Mar 15 2013 13:45 Author Maury D. Beaulier

I am not sure what you are looking for. If the parties live in separate households, the parent who has primary care of the children may file a Motion for child support. A divorce or legal separation is not a prerequisite. With regard to the truck, either party can sell any asset if a divorce has not been filed. of course, any proceeds received would be accessible for division in a divorce. Whether a court award s you the vehicle in a divorce would require a review of much more information including the finances of the parties.

Subject Motion for Amended Findings Date Sat Mar 30 2013 15:49 Author Tom

I filed motion for amended findings from a child support and alimony hearing. I filed this motion at 28 days from the February 16th court order.I received notice from the court clerk that I am to schedule a court date with the Judge and notify opposing council. What is the basic timeline for amended findings and appeal ? . I havent decided whether to appeal to Mn Court of appeals. Am I required to schedule a court date on amended findings ? I thought opposing council had 30 days to reply and then the Judge would ignore all and make a non decision.Then I would have 60 days to file a appeal.

Subject Motion for Amended Findings Date Tue Apr 9 2013 13:56 Author Maury D. Beaulier

Pursuant to MINN. RULES OF CIVIL PROCEDURE a Motion for Amended Findings (52.02) must be served and heard within the same time frame as a Motion for a new trial (59.01). Such a motion must be served within 30 days after Notice of Filling of the Order is sent to the parties from the court clerk; and the motion must be heard within 60 days after the order, unless the time for hearing be extended by the court within the 60-day period for good cause shown. An appeal may be taken from the original order or any order on resulting from the Motion for Amended Findings.

Subject Judge Dragging Feet Date Tue Apr 2 2013 11:21 Author Kris (kklasell@yahoo.com)

My ex and I filed a stipulated dissolution with child using attorneys 3 months ago in Sherburne County. The judge has still not signed the papers and there is no indication of any problem with the papers. Neither attorney is any help at all. How long can the judge let this just sit on her desk? I have severe financial issues that can not be addressed until the judge signs the papers. What rights, if any, do I have here?

	Subject Check Status Date Tue Apr 9 2013 14:10 Author Maury D. Beaulier
Your attorney may always call the Judge's clerk to determine the status of the case. That's what I would do.

	Subject moving Date Fri Apr 5 2013 09:31 Author Gina
In Minnesota, a divorce was filed, but thats the only thing that has happened so far. Can one parent move away after the divorce has been filed without consent of the other parent? If the other parent knows a move is being planned does he need to take steps with the court to prevent it or is it automatically not allowed because nothing has been established?

Subject More Information Needed Date Tue Apr 9 2013 14:11 Author Maury D. Beaulier

That depends on a few things. Is the parent moving with the children? If so, how far away? There is nothing under the law that prevents a parent from moving anywhere if they are not taking the children with them. if they intend to take the children, Minnesota statutes obly preclude moves out of State where there is no consent from the other parent. Even with an in state move, you may have remedies. You may file a Motion for Temporary Relief to have a court determine temporary custody and parenting time issues while the divorce case is proceeding. If one parent is moving away, you may have a strong argument that you should have custody so that the children have a sense of stability in their home town, school district or near their friends.

	Subject martial property division upon death Date Mon Apr 8 2013 21:48 Author Sindy Frank (s.irene63@yahoo.com)
Married 33 years, but separated and living apart for 8 years. Can my husband bequeath/sell/or give away marital property assets without my knowledge or consent?

	Subject No Restriction on Property Date Tue Apr 9 2013 14:15 Author Maury D. Beaulier
Yes. There is no action pending and no order preventing it so either party may dispose of property as they deem appropriate.

	Subject marital property Date Mon Apr 8 2013 21:56 Author Sindy Frank (s.irene63@yahoo.com)
Wisconsin. Clearly stated, can my husband depose marital property assets during the marriage. He is terminally ill and is not expected to live more than 2 years.

	Subject No Restriction Date Tue Apr 9 2013 14:17 Author Maury D. Beaulier
Yes. See previous answer

	Subject End Of Child Support - MN Date Fri Apr 19 2013 10:45 Author John (Jmckennell@comcast.net)
My son turns 18 this month and graduates on June 8th. I pay child support directly to his mother on the 1st and the 15th of each month. As child support ends when he turns 18 and graduates from high School, do I pay only a pro rated amount in my check on the 1st of June (June 1 to the 8th)?

	Subject End of Month of Graduation Date Fri Apr 19 2013 11:36 Author Maury D. Beaulier
Child support ends July 1. The month of June is paid in full.

	Subject grad date in may Date Author dad
what if they graduate May 30th, last day of school is May 29th

	Subject Month of Graduation Date Sat Apr 20 2013 14:51 Author Maury D. Beaulier
If the child graduates in May, child suport is only payable through May, assuming, of course, that they have reached the age of 18.

	Subject Last child finally help? Date Wed Apr 24 2013 17:11 Author DadE
MN here My last child turns 18 in June and will be graduated. Question...Do I have to file anything to stop the child support? What do I file? Also I have an Escrow Account that only the County can release, How do I go about getting the money back? I am up to date on cs. May I file it with the other motion...assuming I have to file a motion to end cs. Thank you for your time! DadE

	Subject Motion Date Thu Apr 25 2013 10:46 Author Maury D. Beaulier
It should end automatically, but, it seems that often the county fails to step up. Call your county child support office and discuss with them whether it will automatically terminate. If not, you must file a Motion to modify child support.

	Subject Escrow Account Date Thu Apr 25 2013 15:06 Author DadE
What about the escrow account? This county seems to fail a lot of times to step up.

	Subject I KNOW DATE Date Wed Apr 24 2013 18:23 Author DadE
I know that my end date should be July 1st 2013

	Subject Please help do we file soon? Date Thu Apr 25 2013 08:21 Author DadE
Do we file for a mod to stop the cs or what? Also what about the escrow account?

	Subject As I said Date Fri Apr 26 2013 15:12 Author Maury D. Beaulier
It should stop automatically, call your child support office. If it does not, file a Motion. I am not sure what you refer to with the escrow account. I would have to review the documentation.

Subject When does Child Support End ??? Date Author Disgusted beyond belief Dad

Maury, I need your help - Bad - My last child's last official day of High School is May 31st 2013. I wrote to my county ( St Louis ) child support worker reminding her that this is the date and I feel I am no longer obligated past the month of May 2013. ( Commencement is June 5 but that is irrelevant in my book ) My county worker writes back and says I am obligated to pay child support through July 1, 2013 !! Where on earth do they come up with something like this ? I am sitting here astounded that they have some sort of twisted logic that say I am responsible through the month of June 2013 ? Are these " rules " decided on a county by county basis ? It would seem clear reading the statute that Child Support should end upon graduation from High School ? Thanks for any light you can shed on this subject, and if this is true it is one more knife in the back of fathers who have diligently paid child support every month of every year for 14 years. enough said

Subject Child Support Date Wed May 8 2013 13:14 Author Maury D. Beaulier

I can't tell you where the child support worker came up with his or calculation. I can tell you that if child suport does not automatically terminate in the proper time frame, you must file a Motion to terminate it. The termination date is specified in Minnesota statutes as part of the child support statute's definition of "child." Minn. Stat. 518A.26 states as follows: Subd. 5.Child. "Child" means an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support. In my experience, full child support is payable in the month the child graduates, even if that occurs at the beginning of the month. Since the statutory language indicates that the person is no longer a child under the statute when he/she is under the age of 20, but older than the age of 18 and is "no longer attending secondary school" - it would seem logical to conclude that child support terminates at the end of the month in which the child is no longer attending school, and not the month of commencement. I have located no case law that has concluded otherwise.

Subject When does child support end follow up Date Wed May 8 2013 08:27 Author Disgusted beyond belief Dad

Maury I apologise that I did not see my answer to the question I posed a few lines above mine. I did see however and need some clarification about the definition of "Graduated ". My 18 year old son's last day of classes is May 31st. I am under the opinion that this marks the graduation date as the commencement is an optional and only a formal ceremony after the fact. One whole month of additional child support rests on this answer I believe. Thanks again for all of your help over these years.

	Subject Previous Answer Date Wed May 8 2013 13:29 Author Maury D. Beaulier
See previous answer.

Subject Conspiracy ? Date Thu May 9 2013 11:21 Author Still Disgusted Dad

Just as a follow up to my question and for future reference for Obiligor's this is where I am on this issue. I spoke with a person at the DHS on this issue and she at first was fairly certain that child support would end in the month of commencement. After I prodded her a bit on why commencement vs last day of school as a senior, she all of a sudden came up with a very detailed description the DHS is using to clarify for counties. I quote " If the child completes enough credits to be considered graduated before the ceremony, then the emancipation date is the last day of the month in which the child completed the credits. " At present my child support worker in St. Louis County Mn is stonewalling me on whether they will reverse their initial ruling that I was obligated to pay an additional MONTH of child support due to commencement being June 5th. To close, I wonder how many other Obligor's have overpaid child support due to this handy " confusion " in the definition of emancipation of a high school senior ?

	Subject Ignorance Date Thu May 9 2013 12:31 Author Maury D. Beaulier
It is a good question, and one I cannot answer. However, the word "conspiracy" is thrown around far to easily in my opinion. I would suggest it is far more easily attributable to ignorance or incompetence. It certainly would be helpful if the matter had been raised in a appeal so that the matter could be resolved by case law.

Subject Totally agree Date Fri May 10 2013 08:27 Author Continuing to be disgusted Dad

I threw that word conspiracy out too lightly and half jokingly. It is a serious matter and there just might be a case argued in this matter if I am forced to pay for the month of June. I don't roll over easily and feel that it will be worth my trouble to take it into court. Big question is, who would the plaintiff(s) be ? The Obligee who is going to receive the funds ? or the County for ordering funds withheld and paying them over ? or both ?

Subject Not an Easy Solution Date Fri May 10 2013 09:48 Author Maury D. Beaulier

Sadly, the county as a governmental unit has limited immunity so long as they are acting within the scope of their employment. As a result a suit against the county is unlikely. That is particularly true where the termination date for support is not clearly defined and may be subject to interpretation. Is the last day of attendance at school class or commencement? It would seem the legislature should more carefully define it in its statute or, if contested through the courts of appeals, it can be defined by the courts - -a costly procedure.