What happens to the house during a divorce?If youre in the midst of a divorce or considering filing, there are likely a lot of things on your mind. The divorce process is stressful, emotional, expensive and confusing. Sometimes, youre faced with questions that you have a hard time answering because it seems like theres no good answer. Other times, youll experience questions that you dont feel like you understand well enough to begin to guess. One area where you might lack information concerns your home and what happens to it during a divorce. In the hopes of shedding a little light on the options you face, take a look at the following discussion of approaches to handling the house.

What if one party wants the house?

If only one spouse wants the house, its cause for happiness, though not necessarily outright celebration. Why no celebration? After all, there is no need for a big fight about the marital home, a common source of contention. Though its better than when both parties want the house, it doesnt mean there isnt still opportunity for trouble. The reason is that just because someone wants the house doesnt mean he or she can actually afford it. If only wishing made it so

If someone wants the house, the next step is to try and determine if he or she can afford it, on their own. This last part is critical. When you divorce, you will almost always want to insist that if you arent keeping the house, the spouse who is must refinance to release you from the mortgage obligation. If the refinancing never occurs, you will remain legally responsible for the house, regardless of what the divorce decree says. If the spouse who wants the house isnt in a financial position to qualify on their own, it may not work out, dashing that persons hopes and forcing you to think through another solution.

What if both parties want the house?

If both parties want the house there is, unfortunately, no way to ensure both people get exactly what they want, someone will have to give. A house, after all, cant be divided in two and isnt subject to shared custody arrangements. Though it may take a while to reach agreement, youll eventually need to settle on one person to remain in the home and the other person to get something else of value in return. If theres equity in the house, it isnt fair for the person remaining in the home to get to keep that valuable asset while the other person gets nothing. Instead, the party with the house will need to offset this asset in some other way. Perhaps the person with the house gives up some retirement funds or a savings account. Perhaps they simply buy out the other party, giving him or her half the equity in the house. Though there may be some upset feelings, the end result is that someone gets to walk away with the house and the other person gets an asset of similar value.

What if no one wants the house?

This is a relatively painless outcome. If no one wants the house, then theres no need to fight and no need to refinance. All you need to do is sell the thing. Sometimes, even that can prove difficult, with slow real estate markets or inflated ideas of the value of the house standing in the way of a quick sale. When that happens, the problem that can arise is the parties are stuck paying for not only the house, but their alternate housing, something that can get expensive pretty quick. Finally, once the house sells, youll need to divide up either the profit or, in some unfortunate cases, the loss.

An experienced Minnesota family law attorney can help walk you through the difficult process of divorce, including offering advice on confusing financial issues such as alimony and helping negotiate emotional subjects like child custody arrangements. For more information on divorce in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398.

Source: What Happens to Your Mortgage in a Divorce?, by Ashley Eneriz, published at Time.com.

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Minnesota Child Custody EmergenciesTypes of Custody in Minnesota

During a divorce (dissolution of marriage) proceeding in Minnesota, there are many issues for former spouses to settle.

One of the most contentious is custody of dependent children. A basic overview of child custody law in Minnesota can help parents make informed decisions in the best interest of their children.

Minnesota statutes define two types of custody. The first is legal custody.. Legal custody of a child permits a parent to control a childs upbringing, education, health care, and religious practices. Minn. Stat. 518.003(a). There are varying degrees of legal custody in Minnesota, but in general, Minnesota courts presume joint custody is in the best interest of the child. Minn. Stat. 518.17 subd. 2. Courts may depart with this statutory presumption on a case-by-case basis depending on several factors. Those factors are 1) the parents ability to cooperate on child rearing matters, 2) how parents resolve disputes regarding the child, 3) whether extended interaction with one parent could be detrimental to the children and 4) instances, if any, of domestic violence in the household. Minn. Stat. subd. 2.

By contrast, Minnesota defines physical custody as the routine care and day-to-day administration of the childs welfare. Minn. Stat. 518.003(c). Unlike legal custody, there is no statutory presumption favoring joint physical custody. In a marital dissolution proceeding, a court will administer the best interest factors outlined in Minn. Stat. 518.17 subd. 1 to determine physical custody. The best interest test is similar to the test for legal custody, though more detailed. For example, a court will consider the reasonable preferences of the child when considering how to administer physical custody Minn. Stat. 518.17 subd. 1(a)(3).

Minnesota statutes permit parents to come to a reasonable agreement regarding legal and physical custody outside the purview of a judicial proceeding. Upon consent of both parties, parents may submit to the court a parenting plan to determine physical and legal custody of the child. Minn. Stat. 518.1705. A mutually agreed upon parenting plan must include (1) a schedule of time each parent spends with the child, 2) a method of decision-making responsibilities regarding the child and 3) a method of dispute resolution between the two parties. Minn. Stat. 518.1705 subd. 2(a).

Determining physical and legal custody of a child can be a daunting task for parents in the midst of a marriage dissolution proceeding. The advice of a knowledgeable Minnesota Family Process can reduce stress and help determine the best interests of the child.

Dakota County Divorce Lawyers

An experienced Minnesota family law attorney can help walk you through the difficult process of divorce, including offering advice on confusing financial issues such as alimony and helping negotiate emotional subjects like child custody arrangements. For more information on divorce in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at  612-424-0398.

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Dakota County DivorceIts a common complaint about divorce, the process is not only emotionally fraught and expensive, but it takes far too long. Between waiting periods and overloaded court dockets, it can take months for a divorce to wind its way to a conclusion. Though such complaints are nearly universal, recent news reports indicate that those couples unlucky enough to reside in Mississippi may have far more cause for concern than others. Thats because Mississippi is one of only two states (along with South Dakota) that do not allow for no-fault, unilateral divorce.

Trying to mediate

What is a no-fault, unilateral divorce, you may be wondering? No-fault refers to a kind of divorce that doesnt require holding any one party responsible for the demise of the marriage. States without no-fault divorce, like Mississippi, require someone to be responsible and this can prove difficult for a number of reasons. One reason is that sometimes, no one is at fault, marriages just arent working. Another issue is that requiring fault typically makes a contentious divorce even more so. Finally, finding fault can be hard to prove and thus time-consuming, forcing couples to spend time assigning blame rather than making plans for their life post-divorce.

Collaborative Divorce

A unilateral divorce refers to a split that can be accomplished by one person alone. Though we all know it takes two to tango, when it comes to divorce, its good to be able to move alone. The reason is that if one spouse is particularly uncooperative or combative, unilateral divorce allows the other party to get out of the marriage despite the attempted obstruction. In states without unilateral divorce, the spouse trying to leave might find themselves truly trapped.

No-Fault Divorce

So why is no-fault divorce a good thing? Weve already touched on some of the important benefits, but lets run through them again. For one thing, no-fault divorces are much faster. With speed comes efficiency and with efficiency comes cost savings, meaning no-fault divorces are also cheaper than those where fault must be found. No-fault divorces are potentially less acrimonious, given that one party doesnt have to be blamed for the failure of the marriage. Its for all these reasons that 48 out of 50 states have adopted no-fault grounds for divorce, an attempt to make it easier on unhappy couples to end their marriages.

What Makes an Easy Divorce?

Back to the title of the post, why is it a good thing to be able to divorce easily? A good example comes from Mississippi, where the legislature is currently embroiled in a fight over how to modernize the states antiquated divorce laws. At least two solutions have been proposed and both were quickly rejected by one influential legislator philosophically opposed to divorce. After an outcry from critics, the legislator agreed to meet with a domestic violence support group, the Center for Violence Prevention and discuss the matter. The group explained to the legislator how important a change in the law is to victims of domestic violence across Mississippi. As the law currently is written, divorce is nearly impossible if one spouse refuses to cooperate, leaving vulnerable spouses at the mercy of their controlling partners. Though some argue that abuse is already a legitimate ground for divorce, the CVP revealed examples of judges across the state who have said single incidents of abuse arent enough to satisfy the ground of habitual cruel and inhuman treatment. According to the CVP, the law helps abusers by encouraging their victims to feel trapped and helpless.

In Mississippi, the way the divorce law has been written, to make it exceedingly difficult, not easy, has caused some families serious and unnecessary harm. In a hopeful sign, the previously obstructionist legislator has now changed his tune and, after meeting with the CVP, authored an amendment of his own designed to make the divorce process simpler, especially for those who may be victims of violence. Though Mississippi still has a long way to go to smooth out an overly complicated process, this appears to be a step in the right direction.

Dakota County Divorce Lawyers

An experienced Minnesota family law attorney can help walk you through the difficult process of divorce, including offering advice on confusing financial issues such as alimony and helping negotiate emotional subjects like child custody arrangements. For more information on divorce in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at612-424-0398.

 

Source:Lawmaker flips to support domestic abuse as divorce reason, by Sarah Smith, published at SunHerald.com.

 

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Minnesota Divorce LawAnother touchy area that can be hard to compromise on, especially for those without children, involves pets. Those who have pets understand how much they can become an integral part of the family and why, in some divorces, the thought of losing contact with a pet can be so heartbreaking.

Though people have long understood the emotional bond that comes from having a pet, the law has been slow to catch up. Until very recently, pets were an afterthought in divorces, legally consigned to the importance of any other item of personal property, like a sofa. According to recent articles on the subject, times may be ripe for change, with one state finally passing a law to recognize the important role pets play in some families. Many advocates for change hope that this represents a broader societal movement to acknowledge the legal value of animals, which, if true, could have big impacts on the way pets are dealt with during a divorce.

Pets in a Divorce

First, let’s discuss the way things have long been done. When it comes to pets, the law never held them in terribly high regard. Even if you desperately loved your dog, the family court likely didn’t care very much. That’s not because the judges are heartless (they probably really love their dog too), but because the law does not grant animals any legal weight in a divorce proceeding. Animals, under the law, are simply items of personal property. That means if one spouse came into the marriage with a pet, that pet would be deemed separate property and thus the property of that spouse in a divorce. If the pet was acquired during the marriage, it would need to be divvied up, just like the other items of marital property. Before the law, your beloved cat is no different than a TV set or an ottoman.

This means that courts will not engage in a long or detailed analysis of where a pet should be placed. There is no best interest test (which is what happens with children). There are also no court-ordered visitation arrangements allowing shared custody. After all, would a court ever order and then administer shared custody of a toaster? Unlikely.

Those who love their animals far more than their toasters have begun advocating for changes under the law. Animal activists point out that the law is actually more complicated when it comes to animals than it first appears. Though family laws ignore the importance of animals, criminal laws do not. That’s because laws exist in every state criminalizing animal abuse and neglect. In this way, the courts do in fact make a distinction between pets and sofas. After all, no one would go to jail for abusing their couch, the same isn’t true with animals.

Just last year legislators in Alaska finally took the plunge and became the first state in the country to update antiquated family laws as it relates to pets. In Alaska, judges can now conduct a best interest analysis when it comes to pets. They can consider things like how the parties care for the pet, who feeds the animal or takes it on walks, and then make a much more informed determination about who should receive the pet post-divorce. Since then, legislators in other states, like Rhode Island, have floated similar proposals. Though there’s no tidal wave of legal change just yet, Alaska’s decision marks an important legal step forward for animals and the people who love them. If progress continues, don’t be surprised if in another few years pet custody hearings are the rule rather than the exception.

Free Initial Consultation

An experienced Minnesota family law attorney can help walk you through the difficult process of divorce, including offering advice on confusing financial issues such as alimony and helping negotiate emotional subjects like child custody arrangements. For more information on divorce in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at 612-424-0398.

 

Source: In a first, Alaska divorce courts will now treat pets more like children, by Karin Brulliard, published at WashingtonPost.com.

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Dakota County Grandparent Visitation - Flanders Law Firm LLCAs most people know, courts rarely want to terminate any adults parental rights regarding their children.

In fact, recent decades have revealed that even when theres strong reason to believe that one (never criminally convicted) parent may have killed the other, it still may be in the childrens best interests to be raised by the one surviving parent.

Although our culture clearly embraces the presumption that most parents are the best caregivers for their dependent children, Minnesota has passed legislation setting forth guidelines for its courts and social service agencies to help them decide when to terminate someones parental rights

You can learn more about the most common situations giving rise to this type of action by reading the 2015 Minnesota Statutes, Public Welfare and Related Activities, Chapter 260C, Section 260C.301. Its entitled Termination of Parental Rights. Heres a summary of the key provisions of this statute.

Acts and Omissions that Commonly Lead to the Termination of MN Parental Rights

Minnesota has assigned the duty to its juvenile courts to decide when parental rights should be terminated either on a voluntary or involuntary basis. In those rare instances when parents want to have their parental rights terminated, they must provide written consent for this action to be taken, usually after clearly explaining why they wish to let go of these rights.

However, the most common way that parental rights are terminated in Minnesota involves a juvenile court or public welfare agency initiating this action by filing a petition seeking this type of order or ruling. A family law attorney should be consulted for this. In general, only very negative circumstances can justify this involuntary type of parental rights termination, including situations when:

  • A parent has abandoned a child to the extent that the childs most basic needs are not being met. Such needs generally include providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the childs physical, mental, or emotional health and development;
  • A parent who is financially capable of doing so and who has been ordered by a court to financially contribute to a childs needs keeps refusing to do so;
  • A parent has been found to be palpably unfit to be a party to the parent and child relationship often based upon a prior, negative ruling related to one or more of the persons other children;
  • Necessary changes have not been met. After a child has been temporarily placed out of his/her home to receive care, one or both of the parents continue to fail to meet minimum standards set by the courts or statutes that would allow the child to return home.

Behaviors or Habits that Can Directly Lead to a Petition to Terminate Parental Rights

  • Chemical dependency on certain types of illegal or harmful drugs. Social service agencies will normally make every effort to helpful an addicted parent obtain the treatment s/he needs in order to maintain a positive, active relationship with a child if the parent keeps working hard to remain clean and sober;
  • Conviction of certain types of crimes. These include crimes set forth in Section 260.012, paragraph (g), clauses (1) to (5);
  • A parent has deserted an infant under two years of age. Also, the specific circumstances must indicate an intent not to return to care for the child;
  • A parent has not had any contact with a child on a regular basis. Agencies tend to look and see if such neglect or lack of demonstrated interest has extended over six months or longer;
  • A child remains in foster care due to the abandonment of the parent;
  • A parent demonstrates abandonment by legally denying paternity;
  • Any behavior that a court clearly finds is directly at odds with the best interests of the parents child.

If your parental rights are now being threatened by a court, a social services agency or the custodial parent, you need to immediately schedule an appointment with your Minnesota family law attorney.

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Contact the Flanders Law Firm today. I offerfree consultationsto all potential clients. Call(612) 424-0398.

 

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How is Spousal Support (Maintenance) Calculated in Minnesota?

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Key Factors Affecting Spousal Support Although both former spouses often keep working full-time after a divorce today, there are times when a court will still make a significant support award to one party. This frequently happens after one spouse has shouldered the majority of the child-rearing duties for a lengthy time period and never had […]

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Minnesota Child Custody Emergencies

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Minnesota Families and the Servicemembers Civil Relief Act (SCRA)

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All of us are grateful for the many men and women who serve this country both here and abroad. In keeping with that respect and gratitude, our government passed the Minnesota Families and theServicemembers Civil Relief Act (SCRA) to help these individuals fully protect their legal rights while serving on active duty. Obviously, when you […]

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