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Family Law

Divorce

What are the grounds for divorce in Minnesota?

Minnesota is a no fault divorce state, which means that you do not have to prove that one spouse is at fault in order to end the marriage. This also means that things one spouse has done that seem unfair to the other spouse such as having an affair or causing the breakdown of the relationship are no concern to the courts. Even when one spouse seems to be at fault, generally assets and debts are still divided fairly equally and custody and parenting time decisions are still decided based on the best interests of the children.

How much will it cost me to get divorced?

The cost of hiring an attorney to assist you to get divorced varies significantly depending on your situation. If you and your spouse are able to rationally discuss the details of your finances and the best interest of your children, then the cost of having an attorney draft a final agreement for you may be minimal. If you are disagreeing on every issue such as who keeps the house and whether one spouse is entitled to spousal maintenance, it will cost significantly more to work out each individual issue with the help of an attorney. Attorneys are paid by the hour, so each hour spent adds to the overall cost. In general, most divorces in Minnesota are eventually settled based on an agreement between the parties as opposed to a trial, but some take longer than others to be finalized.

How long does it take to get divorced?

If you and your spouse have an agreement on all issues and are just asking your attorneys to draft the final agreement, then the time to get divorced can be as little as two months. If it will take some time to work out agreements on certain issues and the parties must participate in mediation or have proceeded to court, the time to get divorced can extend as long as or longer than one year. Generally, the more agreements there are the shorter the time frame for getting divorced.

Will I have to pay child support or will I be awarded child support?

Child support is calculated based on the income of both parties, the costs of medical and dental insurance, and the costs of child care. Child support is made up of basic, medical, and child care support so who pays support also depends on who is paying for child care and who carried the medical insurance. If both parties have equal time with the children, generally the spouse with higher income will still pay the spouse with lower income some form of child support. If one spouse has the children most of the time, then the other spouse will generally owe child support. The online child support calculator (see the link below) is a useful tool to estimate child support obligations.

Child support calculator

childsupportcalculator.dhs.state.mn.us

How are assets and debts divided in a divorce?

Minnesota law says that assets are divided equitably, which does not necessarily mean equally. Debts are generally divided in the same way. In general, assets and debts are divided by making a list of all assets and debts, assigning certain assets and debts to each spouse, and then deciding if either spouse is entitled to an equalizer payment to correct any imbalance in the overall award of assets and debts.

What are non-marital assets and how are they treated in a divorce?

Generally, non-marital assets are those that were owned prior to marriage or were acquired by gift or inheritance. Usually they are not considered when dividing marital assets and debts in a divorce. However, it is the obligation of the person claiming an asset is their non-marital property to prove where it came from and the fact that it was kept separate from marital assets in order to keep it from being considered a marital asset. These calculations can be complicated and may require the use of an expert such as an accountant.

Do I have to go to court to get divorced?

Appearing in court is generally only required if there is no agreement between spouses and the court will need to make a decision on any particular issue. In addition, even if there is a full agreement on all issues, but there are children involved, and only one spouse has an attorney, then one hearing is required to finalize the divorce process. It is certainly possible to avoid going to court and to resolve all issues in the divorce amicably. Often when both parties have an attorney, the attorneys can help both parties understand all the issues better and can facilitate an agreement.

Custody, Child Support, Parenting Time

How is child support calculated?

There are three components to child support in Minnesota, basic, child care, and medical support. Basic child support payments cover the daily expenses of raising a child. Child care support reimburses one parent for the child care (daycare) costs paid by the other parent. Medical support reimburses one parent for the medical insurance premiums and out-of-pocket medical bills incurred by the other parent. In order to properly calculate child support, the parties must provide accurate information such as monthly gross income, monthly child care expenses, medical premium costs for the child alone, child support paid for other children, whether or not one parent is on public assistance, and the number of non-joint children. Child support can be estimated using the online child support calculator (see the link below).

Child support calculator

childsupportcalculator.dhs.state.mn.us

When can I modify my child support obligation?

Child support can be changed only by court order or based on cost-of-living adjustments. If your income, child care costs or medical insurance change, you may be able to modify your child support.

Generally, child support orders can be changed for the following reasons:

  • There is a substantial increase or decrease in either parent’s gross income.
  • There is a substantial increase or decrease in the needs of a parent or the child.
  • One of the parents or the child receives public assistance.
  • There is a change in the cost-of-living for either parent.
  • There are extraordinary medical expenses for the child.
  • There is a change in the availability of health care coverage or a substantial increase or decrease in health care coverage costs.
  • There is a substantial change in child care expenses.
  • The child turns 18 and is no longer in high school.

There may be other reasons or circumstances that warrant a change in child support, so please contact us to discuss your particular situation.

How is child support calculated if one party is self-employed or unemployed?

If a parent is not working, Minnesota law says that their potential income must be used in the child support calculation. Potential income can be based on the amount of money they made at their previous employment, 150% of minimum wage, or other various measures of the amount of money they could be making based on their education and work experience. If a parent is self-employed, calculating their income can be complicated, but generally their self-employment income is calculated by subtracting their monthly business expenses from their monthly gross receipts. However, just because an expense is tax deductible does not mean that it will be subtracted from their income for child support purposes so a careful analysis of what expenses are being deducted is necessary.

Is it possible to change my parenting time order?

Like many issues that involve children, Minnesota courts must consider the best interest of the child in order to modify a previously ordered parenting time schedule. Generally, modifications of parenting time, even to obtain equal parenting time are possible without bringing a motion to modify custody. In order to modify custody, the party seeking to modify custody generally must show endangerment in the current custodial arrangement, and this can be difficult to prove. However, many modifications of parenting time do not require a modification of custody and can be accomplished if it can be shown that the new parenting time schedule would better serve the best interest of the child.

I signed a Recognition of Parentage document when my child was born. What can I do to get custody or parenting time with my child?

If you and the child’s mother signed a Recognition of Parentage (ROP) document at the time of the child’s birth and filed it with the state, then generally you have already been adjudicated as the father of the child. It would not be necessary to go to court to establish paternity if you have a validly signed ROP. In order to get custody or parenting time with your child, you can simply file a petition for custody or parenting time. Initial determinations of custody and parenting time are based on the best interest of the child. Those factors can be found at Minn. Stat. 518.17. A court must consider all those factors in deciding which parent should have custody and what the parenting time schedule should be.

I want equal parenting time with my kids. Is this possible?

It is important to note that in Minnesota a parent generally has a right to at least 25% of the time with the child, unless there are other circumstances such as a history of abuse that would make that much time with the child inappropriate. While parenting time determinations are based on the best interest of the child and the court must consider all of those factors in granting parenting time, including who has traditionally been the primary caretaker of the child, it is more common to see equal parenting time schedules in Minnesota. Some children do well with equally sharing parenting time with both parents and others do better with one primary home and extended time with the other parent on weekends, holidays, and school breaks. Parenting time is also dictated by practical issues such as the parents’ work schedules, the distance between the parents, and the activities and special needs of the children. In any event, the children’s well-being should be the primary concern in agreeing to a parenting time schedule with the other parent or seeking a court order for parenting time.

Spousal Maintenance

How does spousal maintenance work in Minnesota?

Spousal maintenance is generally awarded in longer term marriages and when one spouse earns dramatically more than the other spouse, but the spousal maintenance statutes in Minnesota are full of uncertainties.  In general, spousal maintenance is awarded when one spouse needs it and when the other spouse can afford to pay it.  Factors for spousal maintenance are found in Minn. Stat. 518.552, which require the court to weigh the needs of one spouse with the ability of the other spouse to pay with particular consideration for the standard of living during the marriage.  If you are divorcing and believe that spousal maintenance is a factor, it’s important to carefully consider how both spouses will support themselves after the divorce is final.  This may be a simple process that the parties can resolve on their own or it may involve consulting with third parties such as financial advisors and other financial experts who can carefully consider post-marriage budgets for both parties.

Can I modify my spousal maintenance?

The answer to this question depends on whether or not your divorce decree included a waiver of the ability to modify spousal maintenance.  If not, it may be possible to modify your spousal maintenance obligation if your circumstances have changes.  Changes such as a decrease in the obligor’s income or an increase in the obligee’s income, may result in a situation where the current spousal maintenance order is unfair.  In that case, it may be possible to ask for a modification of the prior obligation.

Criminal Law

Domestic Assault

What domestic assault offenses can I be charged with?

The law in the State of Minnesota establishes that a domestic violence offense occurs when one family or household member commits any of the offenses listed below against another family or household member:

  • Assault or Aggravated Assault
  • Battery or Aggravated Battery
  • Stalking or Aggravated Stalking
  • Kidnapping
  • False Imprisonment
  • Sexual Assault or Sexual Battery
  • Any offense that results in physical injury or death
What are the potential consequences for domestic assault offenses?

These cases can have many facets. You may be falsely accused of battery by your partner, or a restraining order may have been temporarily ordered against you on the basis of false accusations. In other cases, your domestic partner may not want you prosecuted and wants to remain in contact with you, yet the prosecutor’s office or law enforcement are pursuing charges of domestic violence against you.

Due to the intimate or passionate nature of domestic violence cases, oftentimes alleged victims and the accused will reconcile. However, an accuser cannot have the charges dropped just because he or she refuses to cooperate with the prosecution.

A “no contact” provision or Order of Protection is often used in Minnesota cases of domestic violence. An Order of Protection means that the accused can have no contact with the accuser. This can be complicated if the alleged victim decides to start contacting the accuser on his or her own volition. If this does occur, a legal representative will need to step in and get the “no contact” provision amended.

What are some of the potential punishments for a person convicted of domestic assault?

Domestic violence is a specialized form of assault or battery, and may be charged as a misdemeanor or a felony. The penalties, however, are enhanced, and the consequences are far more serious. Incarceration may be for up to one year in a misdemeanor case, and up to life in a felony case.

You might:

  • Face jail or prison time
  • Be sentenced to probation
  • Face fines
  • Be required to attend a batterers’ intervention program
  • Be required to attend substance-abuse treatment
  • Lose your right to carry a firearm
  • Be required to pay restitution
  • Have a permanent criminal record

Like any violent crime, domestic violence can carry a hefty cost in legal and social terms. The greatest impact, though, is at a personal level. These charges can potentially be used as “ammunition” in divorce and child custody hearings. A plea of “guilty” can be just as devastating to a permanent record as a full-blown conviction, and can carry a stigma, including later applications for employment. Additionally, a conviction can prevent the accused from ever legally owning a firearm. These cannot be sealed or expunged once a judgment is made.

What are possible defenses against domestic assault charges?

Just because a person is arrested for domestic violence by the police, it does not necessarily mean that he or she will be convicted or even charged with a crime by the prosecutor. Once we begin to defend or represent a client, it is not uncommon for the charges alleged by the police to be reduced by the prosecutor or even dropped.

Over the years, we have found that many clients are falsely accused by their spouses or family members. There are many reasons that false reports are made in domestic cases. Insecurity, infidelity, financial distress, stress at work and issues relating to children can often form the basis for a false or exaggerated accusation.

We will carefully review the facts and circumstances of each case and personally investigate the evidence that the prosecution has obtained to prosecute the case. With our representation, you can rest assured that we will actively pursue all evidence and witnesses that will assist in obtaining a favorable outcome. Below is a list of potential defenses:

  • Victim Recantation
  • Failure to Read Miranda Warnings
  • Lack of Intent
  • Alibi
  • Mistaken Identity
  • Self Defense
  • Defense of Others
  • Defense of Property

Not just in Minnesota, but in the entire nation, domestic violence cases are subjective. If you are the victim of false or exaggerated accusations, you need a criminal defense lawyer on your side. We can guide you on how to proceed and how to protect yourself. In cases that can lack hard evidence, any shred of doubt is enough to protect you from lies.

Expungement

How does expungement work in Minnesota?

In 2014 Minnesota amended the law to generally make it easier to get an expungement. You may be eligible for an expungement even if you have been told before that you are not eligible. Call Wermerskirchen & Blomquist today for a free consultation to determine if you are a candidate to get your Minnesota conviction expunged.

Juvenile Defense

How do juvenile cases affect families?

An allegation of a juvenile crime can have a devastating effect on your child’s reputation, livelihood, and overall well being. It is crucial that a juvenile case be handled with extreme care and caution by an experienced juvenile defense lawyer. We are experienced attorneys and have handled numerous juvenile cases in Hennepin, Ramsey, and Wright Counties, among many others. Each juvenile case needs to be examined by an experienced juvenile lawyer to determine if it can be dismissed and be removed from your child’s record. If this is a first offense, the courts in Minnesota all have programs designed for certain first-time offenders that will ultimately result in dismissal of your child’s juvenile charges. Your child may also be eligible to seal or expunge his or her juvenile case.

Drug Crimes

How can I defend against criminal drug charges?

Drug possession laws dictate various penalties depending on the type of drug, the quantity of drug, the intent behind the possession, and more. In Minnesota, the drug laws treat very different drugs, including cocaine, crack, marijuana, ecstasy, and oxycodone as the same drug for purposes of our drug laws (with a couple of exceptions for small amounts of marijuana). Knowing the law with respect to possession can be extremely beneficial to those who may be at risk of arrest for such a criminal violation, as well as for those who come into the possession of a drug without their knowledge. At Wermerskirchen & Blomquist, we work hard at the beginning of representation to get drug charges dismissed. This is often possible without trial by suggesting drug treatment instead of harsh penalties.

Drug distribution is a criminal offense that is taken very seriously, and can drastically change the potential outcome of a less serious possession offense. Intent to distribute implies that the individual is not breaking the law for personal use, but instead seeks to make illegal or controlled substances available to others. This is a significant upgrade to standard possession charges and can even result in federal charges.

Wermerskirchen & Blomquist can help you defend against drug and other criminal charges.

Mediation

Is mediation expensive?

When compared to the cost of both parties hiring lawyers and the time and expense of navigating the traditional court process, mediation is a bargain. In mediation with our mediation center, each party pays an hourly rate for the mediator’s time. A divorce with children can usually be completed in mediation in somewhere between 5-10 hours. When no children are involved and assets are minimal, the time in mediation may only be a few hours. Compare that to the cost of the adversarial court process where both parties hire lawyers ($2,500-$5,000 retainers with hourly rates between $200 and $500 per hour) and proceeding to court (preparing for and attending multiple hearings), the difference in cost is staggering. More importantly, it makes sense to consider the emotional cost of an adversarial divorce. Going to court invariably means your focus is on arguing your side of the story to a judicial officer who knows little to nothing about you and your family. Although it may seem tempting to try to “win,” most people who spend the money needed to do so are not necessarily happy with the result. Mediation is an opportunity to have your voice heard, but also to listen to the other side and to come up with solutions that both of you agree to and make sense for your family.

Do I need a lawyer?

In some situations, maybe not. In most situations, even if you are making agreements in mediation, there are a few reasons to also hire a lawyer. First, to feel comfortable with a final agreement, it may make sense to meet with a lawyer to go over the agreements made to make sure they seem appropriate from your unique perspective. Second, once mediation is complete, a lawyer can be hired to draft the legal pleadings needed to file with the court. Some people are comfortable drafting those pleadings on their own using the forms available through the state court website, but having a lawyer do the drafting those takes the guesswork out of getting the forms right. If you do already have a lawyer, your lawyer can certainly come to mediation, although it is not necessary.

What issues are covered in a divorce mediation?

In a divorce there are generally two sets of issues, social and financial. If you have children (social), decisions will need to be made regarding custody (both legal and physical) and parenting time. In mediation, we can discuss your children and any factors that affect how you want to raise your children after you are divorced. A thorough parenting plan will include such issues as specific parenting time schedules, transportation, introduction of significant others, communications between parents, and many other important details. Financial issues include the division of assets and debts, spousal maintenance, and child support. Generally, working out a fair division of assets and debts involves creating a balance sheet by gathering financial documentation. Discussing spousal maintenance often involves discussing the incomes of both parties and the ability of one spouse to support themselves after a divorce. If you have children, child support will need to be calculated and addressed in any final agreement.

How does the mediation process work?

The first step in scheduling mediation is to contact our office to schedule the first session. An intake form will be sent to you to obtain general information about your situation. If necessary, an initial phone call with the mediator and both parties may be helpful to set ground rules and assist with information gathering before the first session. Mediation sessions are usually three hours long. If needed, follow-up sessions will be scheduled at the end of the first session.

Why should I use your mediation center?

Both our mediators, Gillian Blomquist and Kyle Wermerskirchen, have been practicing family law for over ten years. Both are experienced mediators as well. This means they have a unique perspective of understanding the law and the risks of going to court, but their vast experience also gives them the ability to come up with creative solutions to the issues you face. Both of them have extensive training in mediation and other ADR (Alternative Dispute Resolution) processes, but also an understanding of the current state of the laws in Minnesota.

Do you have a sliding-fee scale for mediation and other services?

Yes. We believe that mediation should be accessible to everyone, not just those who have relatively high earning capacity. Therefore, we offer a sliding fee scale for mediation services in which each party pays according to their incomes. If you wish to utilize the sliding-fee scale for mediation services, documentation of your income will be necessary at the intake stage.