Law Office of Tom James
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FAQs about divorce, paternity, parenting time, and child support

Q: What is “no-fault” divorce?

A: At one time, it was necessary to prove that your spouse was guilty of some kind of wrongdoing  in order to get a divorce. The grounds for a divorce varied from state to state, but typically included adultery, cruelty, bigamy, insanity, and desertion. Beginning in the 1970’s, most states either stopped requiring proof of these kinds of things, or began offering an alternative grounds for divorce that did not require proof of wrongdoing. The grounds for a divorce could simply be  “irreconcilable differences” or an “irretrievable breakdown of the marriage.” A no-fault divorce is one that is granted on the basis of one of these kinds of grounds for divorce rather than fault-based grounds like adultery, cruelty and so on. Minnesota is a no-fault divorce state.

Q: Does fault play any role in divorces anymore?

A: Not directly. If there are no children, then marital wrongdoing should not be a consideration at all. On the other hand, if there are children, and if custody or parenting time is at issue, then a spouse’s misconduct during the marriage may be relevant, if it is shown to have negatively impacted the child in some material way, or if it raises a serious concern about a spouse’s and/or the children’s safety or health.

Q: If a husband and wife get divorced, does each spouse get to keep the property that is titled in his or her own name individually?

A: Not necessarily. The character of the property as marital or non-marital has more to do with who gets to keep it than the titling of the property does. In most cases, the court will allow each party to retain his or her own non-marital property. Property acquired by a spouse before the marriage, and property acquired as a gift to a spouse individually (as distinguished from a gift to the couple) are examples of non-marital property. There are others. Marital property, on the other hand, should be divided roughly equally between the spouses, unless an equal division is shown to be unfair. Property acquired by a couple during their marriage may be marital property even if it is titled in only one of the spouse’s names.

Q: Can a mother be ordered to pay child support to the father?

A: Yes. At one time, only men could be ordered to support their families. Today, a mother may be ordered to pay child support to a custodial father in the same way that a father may be ordered to pay child support to a custodial mother.

Q: How is child support calculated?

A: Basic child support normally is calculated using a formula that takes into account both parents’ gross incomes; the number of minor children they have; the amount of time each parent has with the children; the number of children from other relationships who reside in each party’s home; whether either party receives public assistance; and sometimes other factors. In addition to basic support, both parties are expected to contribute to health care insurance and expenses, and to the cost of employment- or education-related child-care, if any.

Q: How much of the child care costs does each parent have to pay?

A: Courts apply a statutory formula to calculate each party’s share of the responsibility for child-care expenses.

Q: What is medical support?

A: In addition to basic child support and child-care support, a court will order the parties to share the costs of health insurance and uninsured health care expenses for the child. This also includes the child’s dental expenses. Normally, the court will order one or the other parent to maintain dependent health insurance coverage for the child, and will order the other parent to contribute to the cost of the insurance. If the court orders a parent to pay basic child support and also to maintain insurance coverage, the other parent's obligation to contribute to insurance may be offset against the basic support amount (reducing the basic support amount.) The court should state in the order how responsibility for uninsured expenses will be allocated between the parties.

Q: How will a court determine the income of a self-employed individual?

A: Normally, courts use pay-stubs, W-2 forms and income tax returns to determine a person’s income. A self-employed individual may not have pay-stubs and W-2 forms to show the court. Tax returns are relevant evidence of income. Because self-employed individuals have a bad reputation for under-reporting or hiding income, though, courts tend to scrutinize their tax returns very carefully, and may require more evidence of income than just the tax returns. Profit and loss statements, income and expense records, business check registers and bank statements provide more evidence of income. If a judge finds that the evidence provided is not credible, or is otherwise inadequate to establish an individual’s income, then the court may impute income to him. Also, if the judge believes an individual is earning less money in his business than he could be earning at a job for which he is qualified, then he may issue a finding that the individual is  voluntarily underemployed. If that happens, he may disregard self-employment earnings altogether, and instead impute income to the individual in an amount equal to what he believes the person could be earning based on his experience and qualifications.

Q: Can the amount of child support be changed?

A: Yes, if there has been a change in circumstances making the terms of the original order unfair. A significant change in custody or parenting time arrangements is one example. A significant reduction or increase in income, or a lay-off from one’s job, are also circumstances that may justify a modification of support. Changes in child-care expenses, or in the availability or cost of dependent health care insurance or expenses, or in the number of children for whom a party is responsible, also may be grounds for modifying support in some cases. These are not the only possible reasons a court may modify a child support order.

Q: Can I stop paying child support if the child comes to live with me?

A: No, not unless a court issues an order saying that you can. A court may suspend or reduce your child support payment obligations if the judge determines that the child has been integrated into your home with the custodial parent’s consent. A court may also modify support if it orders a change in custody or parenting time due to some other change in circumstances. The reduction or suspension is not automatic. You must file a motion asking the court to reduce or suspend your support obligation. If you are seeking a reduction of support on the basis of an integration, you will probably need to file both a motion to modify custody and/or parenting time, and a motion to modify support. The reduction or suspension can be made effective to the date you served the motion on the other party. Courts may not retroactively reduce child support from an earlier point in time.

Q: When does a modification of child support take effect?

A: Generally, a modification may be made effective only from the date the modification motion is served. Child support arrears accumulating between the time of the job loss (or other circumstance justifying modification) and the time a modification motion is served will still be owed. Retroactive modifications generally are not allowed.

Q: Why don’t you litigate custody cases  anymore?

A: Over the years, I’ve helped a number of fathers, mothers, grandparents and other relatives win custody of children. Along the way, I have become firmly convinced that the adversarial system is fundamentally unsuited for the resolution of problems related to the care of children. It encourages parents to destroy each other emotionally and financially; it undermines their integrity; and it is detrimental to children’s psychological and emotional health and well-being. Sometimes it even leads parents to end their lives or the lives of their own children. Until the adversarial winner-take-all approach to disputes over children is scrapped – that is to say, until Minnesota fully embraces the mediated shared parenting model -- I do not feel that I can, in good conscience, participate in the process.

Q: I am the mother of a child born out of wedlock, and the father says he wants our child to spend some weekend time with him. Can I say no?

A: Yes, but evidence of an unreasonable refusal to permit the child to have meaningful contact with his father may be used against you in a subsequent dispute over custody or parenting time. Under Minnesota law, the biological mother of a child born out of wedlock automatically has a right to sole legal and physical custody from the time the baby is born until a court order providing otherwise is issued. The biological father of a child born out of wedlock does not have any right to custody or parenting time (formerly called “visitation”) until a court issues an order granting him such rights. Therefore, unless there is a court order granting the father rights, the biological mother is not legally required to allow him to visit with the child. Nevertheless, if the father brings a motion to establish custody or parenting time rights, the court may look unfavorably upon the mother if she has unreasonably prevented the father from visiting with their child. In extreme cases, a judge may even consider granting the father custody of the child. In making a custody determination, though, the court will consider a variety of things in addition to the mother’s disposition to permit contact with the father, including the nature, frequency and duration of the denied access; the mother’s reasons for denying the father access to the child; the parties’ mental and physical health; permanence; stability; continuity; domestic abuse, the nature of the child’s relationship with the parties and other individuals; the child’s mental, physical and emotional well-being and adjustment; and many other things.

Q: Does an unmarried father have a right to communicate with his children?

A: Not without a court order. Under Minnesota law, the mother of a child born out of wedlock has the right to sole legal and physical custody until a court orders otherwise. The father does not have rights of custody or parenting time (formerly called “visitation”) until a court issues an order granting those rights to him. If the father properly serves and files an appropriate petition or motion, a court may grant such rights to the father as are determined to be in the child’s best interests.  

Q: I’ve heard that signing a Recognition of Parentage is the equivalent of an adjudication of parentage. Does that mean that signing one puts me on an equal footing with the biological mother as far as custody and parenting time rights are concerned? 

A: As logical as that sounds, the Minnesota Court of Appeals has ruled otherwise. The biological mother does not need to obtain a court order to establish her rights to custody and parenting time. She has these rights by operation of law as soon as the baby is born. The biological father, on the other hand, must obtain a court order to establish his right to custody or parenting time. Also, in the absence of a court order, he will have no say in decisions affecting the child, such as where the child will live, which school the child will attend, or the child’s health care and religious upbringing. This is true even if he has signed a recognition of parentage, and even if he has been ordered to pay child support. If he wishes to have these rights, he will need to file a motion requesting an order granting those rights to him.

Q: Does an unmarried father need to sign a Recognition of Parentage before he can ask a court to grant him custody or parenting time rights?

A: No. If he has not signed a Recognition of Parentage, he may ask a court to determine whether he is the father or not. That is to say, he may ask a court to make an adjudication of paternity. A court may grant custody or parenting time rights to a person who has either signed a recognition of parentage or been adjudicated the father of the child.

Q: Can a mother place a child born out of wedlock for adoption without notifying the father?

A: Possibly, if paternity has not been established yet. To avoid losing a child through adoption, an unmarried man must act quickly to protect his rights. Registration with the Father’s Registry is one way to do this. The mother is required to serve notice of any pending adoption on any person who has registered a claim to be the father of the child. Registration must be effected promptly after the child is born, however, or the right to receive notice of planned adoptions may be lost.

Q: What is a parenting time expeditor?

A: A parenting time expeditor is a neutral third party who uses a mediation-arbitration process to help parents (or other people with custody or parenting time rights) resolve disputes over the parenting time schedule. He interprets, clarifies, enforces, and addresses circumstances not already addressed in an existing parenting time order. He first attempts to facilitate negotiations between the parties to promote settlement. If the dispute cannot be settled that way, then he makes a decision as to how to resolve the dispute. If appropriate, he may make a determination as to whether a parenting time order has been violated. A parenting time expeditor may be appointed to resolve a single dispute, or to provide ongoing dispute resolution services to a couple.

Q: Are there any qualifications for parenting time expeditors?

A: Yes. Unless the parties stipulate otherwise, the parenting time expeditor appointed by the court must have completed at least 40 hours of certified family mediation training, including certified training in domestic abuse issues, and must complete at least three hours of continuing education every year.

Q: How is a parenting time expeditor selected?

A: The parties may agree to use one, or the judge may appoint one. The parties may stipulate to a particular parenting time expeditor, or they may ask for the court’s assistance in selecting one.

Q: Who pays for the parenting time expeditor?

A: Ordinarily, the parties will share the cost of the parenting time expeditor in such proportions as they have agreed upon, or as the court orders. Sometimes a court will grant a request to require a party to bear all or a greater portion of the costs if he or she is shown to have acted in bad faith.

Q: Can a parenting time expeditor be subpoenaed to testify as a witness about what the parties said or did during the process?

A: No.