Fill and Sign the Minnesota Child Custody Form

DIVORCE IN MINNESOTA A SHORT GLOSSARY OF TERMS The terms used by lawyers during a divorce proceeding are often unfamiliar and confusing. The following is a short glossary of some of the most common words and phrases used in a divorce action. Child custody Child custody in Minnesota is divided into two areas, legal custody and physical custody. In determining custody, the Courts in Minnesota must make a decision based on the best interests of the child. In doing so the Court must consider twelve (12) factors: (1) the wishes of the child's parent or parents as to custody; (2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference; (3) the child's primary caretaker; (4) the intimacy of the relationship between each parent and the child; (5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests; (6) the child's adjustment to home, school, and community; (7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (8) the permanence, as a family unit, of the existing or proposed custodial home; (9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child; (10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any; (11) the child's cultural background; and (12) the effect on the child of the actions of an abuser, if related to domestic abuse, as - 1 - defined in §518B.01, that has occurred between the parents. Legal custody . The parent(s) who have legal custody make the major decisions about the child's life such as in what religion the child will be raised, whether the child will go to public or private schools, at what age the child will start dating and so on. In Minnesota, the Courts presume that it is best for children if both parents have a voice in these decisions. This is called joint legal custody. The presump tion that joint legal custody is best for the children can be overcome where evidence shows that it is not in their best interest. If such evidence is accepted by the Court, one parent is awarded sole legal custody. Physical custody . Physical custody means the routine daily care and residence of the child. This includes a parent's right to make decisions about the child's everyday life such as what time the child goes to bed, what the child eats, what the child wears, how the child is disciplined and so on. Sole physical custody . Sole or primary physical custody means that the children live most of the time with one parent who makes all of the ordinary everyday decisions about the lives of the children. In this case, the parent who does not have sole physical custody (the non-custodial parent) is usually entitled to visitation with the children. (See visitation below.) Joint physical custody . Joint physical custody means that the parents have agreed between themselves that the children will spend a certain amount of time, not necessarily 50%, living with one parent and a certain amount of time living with the other parent. The parents are free to structure the amount of time the children spend with each parent any way that will work for the parents and the children. This kind of arrangement requires very good communication between the parents. Before the Court will award joint physical custody, four factors in addition to the best interest factors must be considered. These factors set out in M.S. §518.17, subd. 2, are: (1) The ability of parents to cooperate in the rearing of their children; (2) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods; (3) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and - 2 - (4) Whether domestic abuse, as defined in §518B.01, has occurred between the parents. In practice, the Courts in Minnesota will not award joint physical custody if either parent objects to it. At this time, in Anoka County, the Court will not award joint physical custody under any circumstances even where both parents want it, agree to it and believe they can cooperate in making it work. Visitation . The time that the non-custodial parent spends with the children in cases where the other parent has been awarded sole or primary physical custody is called visitation. The Court will usually accept any agreement between the parents about the amount of time the non-custodial parent will spend with the children. If the Court must make the decision, it will grant enough visitation to enable the children and the non-custodial parent to maintain a child-to-parent relationship that will be in the best interest of the children. The non-custodial parent is usually awarded visitation every other weekend and one evening in between. If evidence shows visitation is likely to endanger the child's physical or emotional health or impair the child's emotional development, the court will restrict visitation. Under these circumstances the Court may order supervised visitation or deny visitation entirely. Child support . The amount of money the non-custodial parent pays to the custodial parent for the financial support of the children is called child support. Even in cases where the parents have joint physical custody, the parent who earns more money than the other parent or who has the child less often will pay the other parent child support. The amount of support to be paid is fixed by guidelines set out in M.S. §518.551, subd. 5. The amount of support is based on the number of children and the amount of the non-custodial parent's net income. The percentages range from 16% for one child where the non-custodial parent has net income of $551 to $600 per month to 50% for seven or more children where the non-custodial parent has net income of $1,001 to $5,000 per month. A non-custodial parent with net income of $1,001 to $5,000 per month will pay - 3 - the following percentages in child support: No. of Children 1 2 3 4 5 6 7 or more Percentage Owed 25% 30% 35% 39% 43% 47% 50% Parents with net income in excess of $5,000 per month usually pay the same amount of child support as parents whose net income is $5,000 per month. Where parents have joint physical custody, a formula based on the net income of both parents and the amount of time the children spend with each parent is used to calculate child support. Discovery . Discovery is the term used to describe the process by which information is gathered about property, custody, income and need for maintenance during the marriage dissolution process. Attorneys use a number of legal tools to obtain (discover) information necessary to help the parties structure a settlement and, if settlement is not possible, then the information is presented as evidence to the Court. Common discovery tools include Interrogatories, Requests for Production of Documents, and Depositions. Interrogatories . Interrogatories are written questions sent by one party in a dissolution action to the other party. The party to whom the Interrogatories are sent must answer the questions in writing and return the written answers to the party requesting the informa tion. Interrogatories and other discovery tools are almost always prepared and sent out by the attorney for the party who needs the information. When a party receives Interrogatories, that party, with help from his or her attorney, answers the questions in writing. The answers to Interrogatories are almost always put in final written form by the attorney for the answering party. The purpose of the Interrogatories is to discover information about the parties' assets, income and resources. Requests for Production of Documents . Requests for Production of Documents are written demands that documents be provided to one party by the other party. The documents - 4 - sought are typically to provide written verification of a party's answers to Interrogatories or to provide evidence about the parties' assets and resources. Documents commonly requested are bank statements, tax returns and payroll documents. Depositions . Depositions are question and answer sessions which typically take place in the office of one or the other party's attorney. The person whose deposition is being taken is called a deponent. The deponent must swear under oath to tell the truth just as though he or she were in court. The attorney for the party who requested the deposi tion asks the deponent questions which the deponent must answer unless there is a very specific, legal reason for not answering. The questions and answers are recorded by a Court Reporter who, at the request of either party, will later provide a written transcript of the deposition. The deponent is almost always accompanied by his or her attorney during the entire deposition. A deponent may be a party or another person who may be called as a witness if the divorce action goes to trial. Dissolution of marriage . The legal term for a divorce in Minnesota. Hearings . Hearings are court sessions held in a courtroom before a judge or referee during which each party, usually through the attorneys, asks the judge or referee to decide some matter. Hearing for temporary relief . Sometimes called a temporary hearing, this is a court appearance before a judge or referee that occurs when one party needs to have one or more issues resolved on a temporary basis pending a final settlement or trial. Issues often decided by the Court at a temporary hearing include setting child support, determining who will live in the homestead until the divorce is final, deciding which parent will have primary custody of the children until the divorce is final and deciding when visitation will occur during the divorce process, determining whether or how much spousal maintenance is needed on a temporary basis and determining whether some personal property should be divided on a temporary basis. Issues . Matters about which the parties disagree such as who will have physical custody of the children, whether one spouse will pay the other maintenance, the value of property and how property will be divided. - 5 - Marital Property . All of the property, including real estate, personal property and vested or unvested pension benefits, acquired by either spouse during the marriage is presumed to be marital property regardless of whether title is held individually or jointly or in some other form of co-ownership. The presumption that property is marital may be overcome by showing that it is non-marital. Motions . Written documents asking the Court to hold a hearing and make a decision about some matter raised by one party or the other. Motions must be used to bring an issue to the attention of the Court before the final hearing or trial. The most common motion is a Motion for Temporary Relief. No-fault divorce . Minnesota is known as a no-fault divorce state. In no fault divorce states, neither spouse is required to claim or to prove that the other spouse has done something wrong in order to obtain a dissolution. In Minnesota, the no-fault concept has been extended to the division of property, to child custody, to alimony (spousal maintenance) and to child support. Thus, in Minnesota, neither spouse can present evidence of the other spouse's marital misconduct to obtain a more favorable property division, to effect a spousal maintenance award or to alter a child support award. Evidence of marital misconduct will not play a part in the Court's decision to award the custody of the children to one spouse or the other unless the misconduct has a direct negative impact on the children. Non-Marital Property . Real estate or personal property acquired under the following circumstances is non-marital property: (1) property acquired during the marriage as a gift, or inheritance made by a third party to one spouse but not to the other spouse--for example, one year after your marriage, your aunt gives you 100 shares of AT&T stock for your birthday; (2) property acquired before the marriage; (3) property excluded from the marital estate by a valid pre-nuptial agreement. (An antenuptial agreement is another term for a pre-nuptial agreement.) - 6 - Non-marital property usually remains the property of the spouse who originally owned it. It is the obligation of the spouse who claims property to be his/her non-marital property to provide the court with proof. If your non-marital property increases in value, the increase in value remains non-marital in some circumstances. These circumstan ces should be discussed with your attorney because they are not as clear cut as it might appear. Property exchanged for non-marital property remains non- marital. However, making this determination is complicated and must be discussed with your attorney. Property acquired after the date of valuation also is considered non-marital property. The date of valuation is the date that the legisla ture and the Courts set for fixing the value of all of the spouses' property during a dissolution proceeding. The question of marital and non-marital property can be complicated. It is very important to discuss these matters thoroughly with your attorney. Orders . Directives from the Court. Orders are usually formal written documents in which the Court sets out its resolution of problems that the parties have not been able to resolve between themselves. Parties . The parties are the spouses who are divorcing. Each sp ouse is called a party to the action or simply a party. Petitioner . The party who begins the divorce action is called the Petitioner. Respondent . The party against whom the divorce action is brought is called the Respondent. Co-Petitioners . Where the parties agree to bring the divorce action jointly, they are called Co-Petitioners. Petition . A formal legal document that asks the Court to grant the Petitioner a dissolution of marriage and sets out the resolution, sometimes called relief, the Petitioner requests in regard to such matters as custody, child support, mainte nance and property division. Pretrial . Sometimes called a prehearing settlement con ference, a pretrial is an informal meeting with the parties and the attorneys present at the Courthouse. The purpose of the pretrial is - 7 - to attempt to settle the case. If the case cannot be settled, the pretrial conference is used as an opportunity to determine which matters must go to trial. The judge is available at the pretrial conference to help the attorneys and parties try to settle some or all of the issues and to offer an opinion on how a given matter might be decided at trial. Spousal maintenance . Alimony is another word for spousal maintenance. Spousal maintenance (often shortened to maintenance) is the money paid by one spouse to the other spouse for living expenses. In Minnesota, whether or not spousal maintenance will be awarded depends on a number of factors set out in the statutes at M.S.§518.58. In brief, these factors include the length of the marriage, the need of the person seeking spousal maintenance, the ability to pay of the spouse from whom maintenance is sought and the standard of living enjoyed during the marriage. Summons . A formal legal document that accompanies the Petition and must be formally delivered to the Respondent along with the Petition. The Summons alerts the Respondent that certain actions must be taken within specific time periods and that failure to comply may result in the Petitioner obtaining a dissolution as well as all of the relief the Petitioner asked for in the Petition. The Summons also contains temporary restraining orders to prevent either party from dissipating assets or harming the other party. Trial . Sometimes called a final hearing, it consists of a formal presentation of evidence to the Court. If some or all of the issues such as custody, maintenance or property division have not been settled, the Court allows the attorneys for the parties to present documentary evidence called exhibits and oral evidence in the form of testimony from the parties and other witnesses. Based upon this evidence, the Court will resolve the issues. A trial can last from a few hours to several days depending on the number of issues in dispute and the complexity of the issues. - 8 -