Family Law

Family law is an area of law comprised of dissolution (divorce), custody/visitation disputes, maintenance, division of marital property, adoption, paternity, and similar family oriented legal issues. Dissolutions (divorces) may be highly complex matters or they may be uncontested and reasonably simple.

DIVORCE/DISSOLUTION

Dissolution of a marriage, or divorce, as it is more commonly known, is a legal proceeding to end a marriage. A court order for dissolution will cover all of the aspects of the end of the marriage: parenting time (formerly referred to as custody and visitation), support for the minor children, spousal maintenance (formerly called alimony), distribution of assets, distribution of debts, distribution of property, and pension/retirement accounts.

Minnesota is referred to as a no fault state, which means that once the parties have shown that there is an irretrievable breakdown in the marriage relationship, no further fault needs to be apportioned to either party. The parties must be convinced that there is no reasonable prospect for reconciliation, and that the marriage cannot be saved. In most cases, in order to file for dissolution in Minnesota, one party must live in Minnesota for 180 days prior to filing so that Minnesota has jurisdiction over the dissolution of the marriage.

A dissolution action could take as little as a few weeks or as long as several months to be completed. The determining factors over the length of time it takes to get a dissolutioncompleted are the complexity of the dissolution (the number of assets and debts), the level of cooperation and agreement between the parties and the availability of court time on the calendar. Dissolution is not effective until a district court judge issues a Judgment and Decree which is entered into the court record.

UNCONTESTED DISSOLUTION

Uncontested dissolutions can be done in a fairly expedient matter, but it requires a high degree of cooperation between the parties and agreement on the issues. Eskens Peterson Law handles all matters of dissolution and family law practice. On uncontested dissolutions we offer a flat fee.

An uncontested dissolution is the name given to those divorces where the parties are in agreement on all issues. For example, sometimes married couples mutually agree that there has been an irretrievable breakdown in the marriage and that a divorce is necessary. They sit down and figure out what assets they have, what debts they have, and apportion those out in a fair manner and in a way that each party is in agreement with the outcome. If there are children in the marriage, the parties agree which parent will be the primary caretaker for the children and how much parenting time the other parent will have with the children. They agree to an appropriate level of child support consistent with the child support guidelines, and they agree on all other matters: who stays in the home, what personal property each party gets and how to divide up other assets including pension accounts.

For a flat fee Eskens Peterson Law will prepare the necessary Summons and Petition, Marital Termination Agreement, Stipulations, and necessary Orders in cases of Uncontested Dissolution as described above. At Eskens Peterson Law we will not inject conflict into what is already a stressful event. However, be assured that if you are facing a contentious divorce, we will fight to make sure that our clients are protected and receive a just settlement. If you or someone you know is facing the prospect of an uncontested dissolution, contact Tami Peterson at (507)345-5500.

Can the parties use the same lawyer?
Parties to dissolution may want to use the same attorney in order to reduce the attorney’s fees involved. Where the parties are in agreement on the terms as in an uncontested dissolution, using a single attorney will often provide substantial savings. Be cautious when using a single attorney. Under the rules of ethics, an attorney cannot represent both parties in cases of dissolution. Where the parties use a single attorney, that attorney would represent one of the spouses by agreement and the other spouse would have to waive any conflict of interest or confidentiality issues by using the same attorney. If at any point during the processing of the uncontested dissolution an issue is raised which creates disagreement, the party who is not represented will have to find an attorney of his or her own or proceed without legal counsel to try and resolve the disputed issue. As we stated before, it is our philosophy at Eskens and Peterson Law to make the dissolution process as painless as possible. Where it is appropriate, we will work with both parties in an uncontested dissolution (within the restrictions stated above).

CUSTODY/VISITATION

As of January, 2001, Minnesota has adopted changes in its dissolution law with regard to parenting time (custody and visitation). In the past, Minnesota has used the terms custody and visitation when dealing with raising the children after dissolution. Before the change, custody was divided into two forms: legal custody and physical custody. Legal custody is a decision-making power regarding the children. Physical custody used to refer to the actual day-to-day care for the children. Physical custody could be assigned to the parents jointly, or one parent would be considered the sole custodial parent and the other would have visitation rights.

In an attempt to lessen the animosity in custody battles, the legislature adopted a new custody/visitation statute, as of January 1, 2001. Under the new statute each parent is apportioned parenting time, thus doing away with custody/visitation language. One parent still remains the primary caregiver, or in the case of joint custody, both parents could have equal involvement in the raising of the child(ren). Joint custody is reserved only for those situations where the parents can get along well enough to work together in the raising of their child(ren).

When one parent is considered the primary caregiver, the parent who is not the primary caregiver is then responsible for child support (an amount based on a percentage of that parent’s monthly income). If you are paying child support, be aware that you may not stop child support payments just because you are being deprived of your right to parenting time or visitation. If you have an issue regarding custody, visitation, or child support and need representation, contact Tami Peterson at Eskens Peterson Law by calling (507)345-5500.

PATERNITY

When a child is born to an unwed mother, the law gives to that mother, sole custodial rights for that child. The father may be identified on documents such as a birth certificate or acknowledgement of parentage without being legally recognized as being the father of that child for the purposes of establishing parenting time. Before the father may establish his right to parenting time, he will need to bring an action in court establishing that he is the father of the child. Once he has a judicial determination that he is the father, he may then seek a court order granting him an appropriate level of custody or visitation. A father may be declared the father of a child for purposes of child support, but he may still not have the necessary authority in law to seek parenting time, because he has not been adjudicated the father for purposes of parenting time. If you have an issue of paternity and need representation, contact Tami Peterson at Eskens Peterson Law, 507-345-5500.

MAINTENANCE

Maintenance (formerly known as alimony) is payment of money on a regular basis from one ex-spouse to the other during or following dissolution. The payments may be for a specific length of time or may last indefinitely. They are based upon one spouse’s need for financial help. The spouse responsible for paying maintenance may take a tax deduction and the recipient of the maintenance must report the maintenance as taxable income. Maintenance may be agreed upon by the parties or if not agreed upon, the Judge may decide to award the maintenance to one of the parties. The court looks at factors such as the length of time of the marriage, the standard of living enjoyed during the marriage, the relative income of the parties, and their respective needs, and the emotional and physical health of the parties.

MARITAL PROPERTY

Generally all of the parties’ property, including assets such as pension plans, is subject to division. The court has broad power to divide marital property equitably or fairly. This may not mean an absolute 50/50 split. Non-marital property is real estate, money, furniture, or other belongings that belong to you or to your spouse prior to the marriage; and, includes gifts or inheritance during the marriage. Under certain circumstances non-marital property may be divided.

If the parties cannot agree to property distribution, the court may divide the property considering a number of factors, including: child custody, earning ability, length of marriage, and the physical and emotional health of the parties. Similarly, if the parties cannot agree, the debts of the parties will be apportioned in an equitable and fair manner by the court. If you are facing the dissolution of your marriage and need legal representation, contact Tami Peterson at Eskens Peterson Law, (507)345-5500.

QUESTIONS?

Contact the attorneys at Eskens Peterson Law Firm below for all your questions.