When two people get married, the income, assets, property and debts they acquire and incur during the marriage are considered ‘marital’ property under Minnesota law. It does not matter who’s name is on the asset or debt - if it was earned or spent during the marriage, it is still presumed to be marital. Minnesota judges are required to divide marital property equitably. Although equitably does not mean equally, typically the division of everything will be approximately equal unless there are circumstances that would make that unfair.
Although marital property is to be divided equitably, when a party can prove that property is non-marital - or not acquired as part of the marital relationship - the property may be awarded entirely to the owner of the non-marital property. Minnesota law considers property that is given as a gift to one party only, property that was inherited by one party and property that was owned by one party prior to the marriage to be non-marital property. It is up to the party who is claiming that property is non-marital to prove his or her claim.
In a recent unpublished Minnesota Court of Appeals case, Lang v Lang, the appellate court found that certain parcels of real estate were the property of one of the parties. The real estate had been purchased by the husband’s father and then transfer to the husband. This happened during the marriage but the court found that the transfer was a gift to the husband only, making the real estate the husband’s non-marital property. As a result, the wife was not entitled to any interest in most of the real estate. The parties had built a house on one parcel of real estate during the marriage. The court found that the house was marital and the value of the house was divided as part of the marriage, however, the land that the house was built on was awarded to the husband alone as his non-marital property.
If you are getting divorced and you believe that some of your property might be non-marital, you will be required to provide the proof of your non-marital claim. Our attorneys work with clients who need to prove non-marital claims to protect their property interests. Cooper & Reid, LLC is unique because we offer sliding scale fees for people of modest means and our attorneys have years of experience. Call Emily K. Cooper at (612) 568-4529 for a free telephone consultation today.
Saturday, January 26, 2013
Saturday, January 19, 2013
Post-Decree Issues: Forcing the Sale of Real Estate
A post by attorney Emily Cooper
We often receive calls from people who have already been divorced but are having problems enforcing the terms of the divorce. Sometimes, after an agreement has been made or a court has issued an order, an ex-spouse decides not to obey the final order or agreement. The result is that one party may become saddled with a joint debt that is not being paid or with liability on a real estate mortgage that is not being paid or real estate that is not being sold. Credit scores can be ruined or the ability to obtain loans impeded.
In order to protect our clients, if we are representing someone in a divorce, we try to make sure language is included in any agreement or stipulation assuring that our client will be indemnified for any debts or liability that the other party is assuming. Language that protects a client when the spouse receiving real estate fails to pay is essential as well as language that requires mortgages to be refinanced or modified to release our client from liability within a certain amount of time is also important.
In cases where our firm is assisting after a divorce is final, usually the recourse for resolving a post-decree dispute is to either attempt to settle the dispute through mediation or to bring a motion in court. A recent unpublished case demonstrated the power of the court to force cooperation when a spouse refuses to abide by an agreement. In Hallin v. Demaray, the appellate court affirmed an Anoka County judge’s decision giving a husband the exclusive right to select a real estate agent, require his ex-spouse to vacate the property if she refused to cooperate and sell the real estate. This all resulted from the ex-wife’s refusal to cooperate with the parties’ agreement to sell the real estate.
If you are facing a post-divorce issue involving real estate and enforcement of a court order, the attorneys at Cooper & Reid, LLC can help. Cooper & Reid, LLC is unique because we offer sliding scale fees for people of modest means and our attorneys have years of experience. Call Attorney Emily K. Cooper at (612) 568-4529 for a free telephone consultation today.
We often receive calls from people who have already been divorced but are having problems enforcing the terms of the divorce. Sometimes, after an agreement has been made or a court has issued an order, an ex-spouse decides not to obey the final order or agreement. The result is that one party may become saddled with a joint debt that is not being paid or with liability on a real estate mortgage that is not being paid or real estate that is not being sold. Credit scores can be ruined or the ability to obtain loans impeded.
In order to protect our clients, if we are representing someone in a divorce, we try to make sure language is included in any agreement or stipulation assuring that our client will be indemnified for any debts or liability that the other party is assuming. Language that protects a client when the spouse receiving real estate fails to pay is essential as well as language that requires mortgages to be refinanced or modified to release our client from liability within a certain amount of time is also important.
In cases where our firm is assisting after a divorce is final, usually the recourse for resolving a post-decree dispute is to either attempt to settle the dispute through mediation or to bring a motion in court. A recent unpublished case demonstrated the power of the court to force cooperation when a spouse refuses to abide by an agreement. In Hallin v. Demaray, the appellate court affirmed an Anoka County judge’s decision giving a husband the exclusive right to select a real estate agent, require his ex-spouse to vacate the property if she refused to cooperate and sell the real estate. This all resulted from the ex-wife’s refusal to cooperate with the parties’ agreement to sell the real estate.
If you are facing a post-divorce issue involving real estate and enforcement of a court order, the attorneys at Cooper & Reid, LLC can help. Cooper & Reid, LLC is unique because we offer sliding scale fees for people of modest means and our attorneys have years of experience. Call Attorney Emily K. Cooper at (612) 568-4529 for a free telephone consultation today.
Thursday, January 17, 2013
Imputing Income For an Unemployed or Underemployed Party
In this difficult economy, it is not unusual for at least one party in a divorce or child support matter to be unemployed or employed part-time. In these situations, it is important for the court to be alerted to potential income that a party could earn. In addition, if a person believes that his or her spouse could be earning more money or is trying to avoid a support obligation through unemployment, presenting the proper evidence to the court is key.
A court has the power to find that a person is voluntarily unemployed or underemployed for purposes of determining support and to “impute” or assign income to that person based on what the court thinks he or she could earn. In a recent unpublished case titled Ludgate v Ludgate, A11-1167, the appellate court remanded a Hennepin County district court case with instructios for the court to determine whether the husband was voluntarily unemployed or underemployed. The appellate court held that the district court could not impute income to a party until the court first found the party to be unemployed or underemployed.
Proving that a person is voluntarily unemployed or underemployed requires gathering the appropriate evidence. This evidence can be obtained through serving discovery (requests for information) on a party, deposing (live questioning) of a party or even investigation by requesting information from third parties through subpoenas or other methods. A judge cannot make a determination without appropriate proof so it is essential that evidence is gathered and properly presented to the court to support a claim that a party is voluntarily unemployed or underemployed.
Attorneys at Cooper & Reid, LLC often work with clients who have legal issues relating to income and we want to help. Cooper & Reid, LLC is unique because we offer sliding scale fees for people of modest means and our attorneys have years of experience. Call Emily K. Cooper at (612) 568-4529 for a free telephone consultation today.
A court has the power to find that a person is voluntarily unemployed or underemployed for purposes of determining support and to “impute” or assign income to that person based on what the court thinks he or she could earn. In a recent unpublished case titled Ludgate v Ludgate, A11-1167, the appellate court remanded a Hennepin County district court case with instructios for the court to determine whether the husband was voluntarily unemployed or underemployed. The appellate court held that the district court could not impute income to a party until the court first found the party to be unemployed or underemployed.
Proving that a person is voluntarily unemployed or underemployed requires gathering the appropriate evidence. This evidence can be obtained through serving discovery (requests for information) on a party, deposing (live questioning) of a party or even investigation by requesting information from third parties through subpoenas or other methods. A judge cannot make a determination without appropriate proof so it is essential that evidence is gathered and properly presented to the court to support a claim that a party is voluntarily unemployed or underemployed.
Attorneys at Cooper & Reid, LLC often work with clients who have legal issues relating to income and we want to help. Cooper & Reid, LLC is unique because we offer sliding scale fees for people of modest means and our attorneys have years of experience. Call Emily K. Cooper at (612) 568-4529 for a free telephone consultation today.
Monday, February 21, 2011
A long distance in-state move may result in a modification of custody
This post will discuss a custody concern that comes up often in Minnesota custody cases. Many parents contact our firm because the other parent is contemplating moving a long distance away either within the state or out-of-state. The parent who is not moving is concerned about custody and parenting time issues with the children. In the case of a parent moving out-of-state and wanting to take a child, Minnesota law is very clear that such a move is not permissible unless the moving parent has permission of the other parent or a court order.
However, Minnesota custody laws do not have the same prohibitions for a parent moving within the state. It is 367 miles from Rochester, Minnesota to International Falls, Minnesota. On the other hand it is only about 40 miles from Minneapolis, Minnesota to Hudson, Wisconsin. A parent moving a child from Minneapolis to Hudson faces more legal restrictions and requirements than a parent moving a child over six hours away but within the same state. So long as the moving parent can continue to allow the non-moving parent to exercise his/her regularly scheduled parenting time - the parent moving a long distance within the state has no real duty to request court or the other parent's permission.
A recent unpublished Minnesota case addressed this issue. The parents in Bishop v Bishop, No. A09-2219, (MN Ct of Appeals, Nov. 23, 2010) were awarded joint legal and physical custody of their child through their divorce in 2008. In 2009, the mother decided to move 45 miles away and enroll the child in a new school in her new city. The father filed a motion with the court to stop the child from being relocated. He asked the court to modify the custody arrangement to award him sole physical custody.
The district court found in favor of the father and the appellate court affirmed this decision. This decision was made after the district court determined that the child's emotional health and development would be jeopardized by changing his preschool. The need for continuity for the child was paramount because the child had some developmental delays identified by his preschool teachers.
Not all cases will have the same results as that in Bishop. The facts must support a court finding that a change in custody is warranted because the parent's move will endanger the child and that a change of custody is in the best interest of the child. Presenting the facts in a persuasive manner is necessary to prevail in a case opposing an in-state long-distance move. Bishop shows that success is possible.
Cooper & Reid, LLC is a Minnesota law firm focusing on family law and social security disability matters for clients of modest means. Our community-focused practice brings many years of experience and high-quality legal representation to those who might not otherwise be able to afford it. We offer sliding scale fees to low-income clients and innovative representation arrangements for pro se litigants. Find out more about Cooper & Reid, LLC at www.cooperandreid.com.
However, Minnesota custody laws do not have the same prohibitions for a parent moving within the state. It is 367 miles from Rochester, Minnesota to International Falls, Minnesota. On the other hand it is only about 40 miles from Minneapolis, Minnesota to Hudson, Wisconsin. A parent moving a child from Minneapolis to Hudson faces more legal restrictions and requirements than a parent moving a child over six hours away but within the same state. So long as the moving parent can continue to allow the non-moving parent to exercise his/her regularly scheduled parenting time - the parent moving a long distance within the state has no real duty to request court or the other parent's permission.
A recent unpublished Minnesota case addressed this issue. The parents in Bishop v Bishop, No. A09-2219, (MN Ct of Appeals, Nov. 23, 2010) were awarded joint legal and physical custody of their child through their divorce in 2008. In 2009, the mother decided to move 45 miles away and enroll the child in a new school in her new city. The father filed a motion with the court to stop the child from being relocated. He asked the court to modify the custody arrangement to award him sole physical custody.
The district court found in favor of the father and the appellate court affirmed this decision. This decision was made after the district court determined that the child's emotional health and development would be jeopardized by changing his preschool. The need for continuity for the child was paramount because the child had some developmental delays identified by his preschool teachers.
Not all cases will have the same results as that in Bishop. The facts must support a court finding that a change in custody is warranted because the parent's move will endanger the child and that a change of custody is in the best interest of the child. Presenting the facts in a persuasive manner is necessary to prevail in a case opposing an in-state long-distance move. Bishop shows that success is possible.
Cooper & Reid, LLC is a Minnesota law firm focusing on family law and social security disability matters for clients of modest means. Our community-focused practice brings many years of experience and high-quality legal representation to those who might not otherwise be able to afford it. We offer sliding scale fees to low-income clients and innovative representation arrangements for pro se litigants. Find out more about Cooper & Reid, LLC at www.cooperandreid.com.
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