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A parent may not relocate a child across state lines without first obtaining permission from either the other parent or the court, unless the non-custodial parent has not been granted any parenting time under the child custody agreement.

According to Minnesota Statute 518.175, Subd. 3(a):

“The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state.”

Permission for relocation by the court will be based on the court’s determination of the child’s best interests as determined by such factors as the child’s relationship with the non-custodial parent, the child’s age and stage of development, the change in quality of life for both the custodial parent and the child as a result of the move, and the reason for relocation.

The parent requesting permission for relocation must prove the move is in the best interests of the child, unless the court finds evidence that the requesting parent has been the victim of domestic abuse at the hands of the other parent, in which case the parent opposing the move must prove that relocation is not in the best interests of the child.

Relocating within state lines is not subject to the same regulations as moving out of state. However, if the parents have joint physical custody, or the move would alter the court-ordered parenting time agreement, a modification order and/or court approval may be required.

For more information on out-of-state or in-state moves, contact Banas Family Law, P.A. at (651) 361-8109 now. 

DEFINITIONS TO COMMON TERMS ENCOUNTERED
IN FAMILY COURT: MINNESOTA CHILD SUPPORT

"Lawyer Speak" can be frustrating to listen to sometimes. To familiarize yourself with some of the common terms (and what they mean to your Minnesota child support case), see the list of MN child support law definitions below.

MN Statutes Section 518A.26 Definitions for Minnesota Child Support Cases:

• Subdivision 1. Terms. For the purposes of this chapter and chapter 518, the terms defined in this section shall have the meanings respectively ascribed to them.
• Subd. 2. Apportioned veterans' benefits. "Apportioned veterans' benefits" means the amount the Veterans Administration deducts from the veteran's award and disburses to the child or the child's representative payee. The apportionment of veterans' benefits shall be that determined by the Veterans Administration and governed by Code of Federal Regulations, title 38, sections 3.450 to 3.458.
• Subd. 3. Arrears. Arrears are amounts that accrue pursuant to an obligor's failure to comply with a support order. Past support and pregnancy and confinement expenses contained in a support order are arrears if the court order does not contain repayment terms. Arrears also arise by the obligor's failure to comply with the terms of a court order for repayment of past support or pregnancy and confinement expenses. An obligor's failure to comply with the terms for repayment of amounts owed for past support or pregnancy and confinement turns the entire amount owed into arrears.
• Subd. 4. Basic support. "Basic support" means the basic support obligation computed under section 518A.34. Basic support includes the dollar amount ordered for a child's housing, food, clothing, transportation, and education costs, and other expenses relating to the child's care. Basic support does not include monetary contributions for a child's child care expenses and medical and dental expenses.
• Subd. 5. Child. "Child" means an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.
• Subd. 6. Deposit account. "Deposit account" means funds deposited with a financial institution in the form of a savings account, checking account, NOW account, or demand deposit account.
• Subd. 7. Financial institution. "Financial institution" means a savings association, bank, trust company, credit union, industrial loan and thrift company, bank and trust company, or savings association, and includes a branch or detached facility of a financial institution.
• Subd. 8. Gross income. "Gross income" means the gross income of the parent calculated under section 518A.29.
• Subd. 9. Income withholding only services. "Income withholding only services" means the services provided by the public authority to collect payments pursuant to a support order but does not include other enforcement services provided by the public authority for IV-D cases. Notices required for income withholding under this section shall be initiated by the applicant for services. An obligation for spousal maintenance under subdivision 21, paragraph (a), clause (3), is only eligible for income withholding only services.
• Subd. 10. IV-D case. "IV-D case" means a case where a party has assigned to the state rights to child support because of the receipt of public assistance as defined in section 256.741 or has applied for child support services under title IV-D of the Social Security Act, United States Code, title 42, section 654(4). An obligation for spousal maintenance under subdivision 21, paragraph (a), clause (3), is not an IV-D case.
• Subd. 11. Joint child. "Joint child" means the dependent child who is the child of both parents in the support proceeding. In cases where support is sought from only one parent of a child, a joint child is the child for whom support is sought.
• Subd. 12. Nonjoint child. "Nonjoint child" means the legal child of one, but not both of the parents in the support proceeding. Nonjoint child does not include stepchildren.
• Subd. 13. Obligee. "Obligee" means a person to whom payments for maintenance or support are owed.
• Subd. 14. Obligor. "Obligor" means a person obligated to pay maintenance or support. A person who has primary physical custody of a child is presumed not to be an obligor for purposes of a child support order under section 518A.34, unless section 518A.36, SUBDIVISION 3, applies or the court makes specific written findings to overcome this presumption. For purposes of ordering medical support under section 518A.41, a parent who has primary physical custody of a child may be an obligor subject to a payment agreement under section 518A.69.
• Subd. 15. Parental income for determining child support (PICS). "Parental income for determining child support," or "PICS," means gross income minus deductions for nonjoint children allowed under section 518A.33.
• Subd. 16. Payor of funds. "Payor of funds" means a person or entity that provides funds to an obligor, including an employer as defined under chapter 24, section 3401(d), of the Internal Revenue Code, an independent contractor, payor of workers' compensation benefits or unemployment insurance benefits, or a financial institution as defined in section 13B.06.
• Subd. 17. Primary physical custody. The parent having "primary physical custody" means the parent who provides the primary residence for a child and is responsible for the majority of the day-to-day decisions concerning a child.
• Subd. 18. Public authority. "Public authority" means the local unit of government, acting on behalf of the state, that is responsible for child support enforcement or the Department of Human Services, Child Support Enforcement Division.
• Subd. 19. Social Security benefits. "Social Security benefits" means the monthly retirement, survivors, or disability insurance benefits that the Social Security Administration provides to a parent for that parent's own benefit or for the benefit of a joint child. Social Security benefits do not include Supplemental Security Income benefits that the Social Security Administration provides to a parent for the parent's own benefit or to a parent due to the disability of a child.
• Subd. 20. Support money; child support. "Support money" or "child support" means an amount for basic support, child care support, and medical support pursuant to:(1) an award in a dissolution, legal separation, annulment, or parentage proceeding for the care, support and education of any child of the marriage or of the parties to the proceeding; (2) a contribution by parents ordered under section 25687; or (3) support ordered under chapter 518B or 518C.
• Subd. 21. Support order. (a) "Support order" means a judgment, decree, or order, whether temporary, final, or subject to modification, issued by a court or administrative agency of competent jurisdiction:(1) for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state; (2) for a child and the parent with whom the child is living, that provides for monetary support, child care, medical support including expenses for confinement and pregnancy, arrearages, or reimbursement; or (3) for the maintenance of a spouse or former spouse.(b) The support order may include related costs and fees, interest and penalties, income withholding, and other relief. This definition applies to orders issued under this chapter and chapters 256, 257, 518, and 518C.
• Subd. 22. Survivors' and dependents' educational assistance. "Survivors' and dependents' educational assistance" are funds disbursed by the Veterans Administration under United States Code, title 38, chapter 35, to the child or the child's representative payee.

Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota.  All rights reserved.

According to the United States Department of Labor, “more than 46 million private wage and salary workers are currently covered by employer-provided retirement plans in the United States.” These plans often serve as the primary source of retirement savings for the workers who have them. During a divorce, in order to have a fair and equitable division of property, one spouse may wish to claim an interest in the other spouse’s plan.

A Qualified Domestic Relations Order (QDRO) is a judgment, decree, order or court-approved property settlement agreement that recognizes the legal interest one spouse has in the other spouse’s benefits under an employer-provided retirement plan.

The division of marital property is governed by state law. However, QDROs carry tax consequences for each party involved. This means that the division of retirement interests must also comply with federal law. In order for a QDRO to be valid in Minneapolis and St. Paul it must be drafted in accordance with Minnesota law, the federal Employment Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986.

Due to the intricacies involved in drafting a valid QDRO, these orders should be drafted with extreme care and foresight to ensure your assets are divided and able to be accessed according to your wishes. A single mistake could render your money inaccessible.

An experienced attorney can help you divide your employer-provided retirement benefits while avoiding the mistakes and pitfalls commonly associated with QDROs. For additional information, please contact the Minneapolis family law attorneys at Banas Family Law now.

De facto custodian.

(a) "De facto custodian" means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:

(1) six months or more, which need not be consecutive, if the child is under three years of age; or

(2) one year or more, which need not be consecutive, if the child is three years of age or older.

(b) For purposes of the definition in this subdivision, any period of time after a legal proceeding has been commenced and filed must not be included in determining whether the child has resided with the individual for the required minimum period.

(c) For purposes of the definition in this subdivision, "lack of demonstrated consistent participation" by a parent means refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship, including, but not limited to, providing the child necessary food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child's physical, mental, or emotional health and development.

(d) "De facto custodian" does not include an individual who has a child placed in the individual's care:

(1) through a custody consent decree under section 257C.07;

(2) through a court order or voluntary placement agreement under chapter 260C; or

(3) for adoption under chapter 259.

(e) A standby custody designation under chapter 257B is not a designation of de facto custody unless that intent is indicated within the standby custody designation.

Interested third party.

(a) "Interested third party" means an individual who is not a de facto custodian but who can prove that at least one of the factors in section 257C.03, subdivision 7, paragraph (a), is met.

257C.03, subdivision 7, paragraph (a):

(a) To establish that an individual is an interested third party, the individual must:

(1) show by clear and convincing evidence that one of the following factors exist:

(i) the parent has abandoned, neglected, or otherwise exhibited disregard for the child's well-being to the extent that the child will be harmed by living with the parent;

(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or

(iii) other extraordinary circumstances;

(2) prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party; and

(3) show by clear and convincing evidence that granting the petition would not violate section 518.179, subdivision 1a.

(b) "Interested third party" does not include an individual who has a child placed in the individual's care:

(1) through a custody consent decree under section 257C.07;

(2) through a court order or voluntary placement under chapter 260C; or

(3) for adoption under chapter 259.

Best interests of a child.

(a) If two or more parties seek custody of a child, the court must consider and evaluate all relevant factors in determining the best interests of the child, including the following factors:

(1) the wishes of the party or parties as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child's primary caretaker;

(4) the intimacy of the relationship between each party and the child;

(5) the interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests;

(6) the child's adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, subdivision 12, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

(11) the child's cultural background; and

(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, subdivision 2, that has occurred between the parents or the parties.

(b) The court may not use one factor to the exclusion of all others. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

(c) The court must not give preference to a party over the de facto custodian or interested third party solely because the party is a parent of the child.

(d) The court must not prefer a parent over the de facto custodian or third party custodian solely on the basis of the gender of the parent, de facto custodian, or third party.

(e) The fact that the parents of the child are not or were never married to each other must not be determinative of the custody of the child.

(f) The court must consider evidence of a violation of section 609.507 in determining the best interests of the child.

(g) The court must not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child.

(h) Section 518.619 applies to actions under this section.

To determine if your case meets the criteria for custody, please contact Minnesota family law attorney Chris Banas at 651-361-8109.

The source of referenced Minnesota Statutes is the Office of the Revisor of Statutes, State of Minnesota, Copyright 2008. All rights reserved.

INITIAL OVERVIEW

What is it? Formerly known as "alimony", Minnesota spousal maintenance is defined as: "an award made in a dissolution or legal separation proceeding of payments from the future income or earnings of one spouse for the support and maintenance of the other."

When can maintenance be awarded? It can be awarded during the pendency of a dissolution proceeding or at the end as the result of a settlement or the result of a trial. In some situations, it can be awarded even after the proceeding has concluded, if the Court has retained jurisdiction over the issue.

When filing for divorce, many people are aware of the common financial ramifications, including: property division, child and spousal support, and healthcare coverage changes. The impact of a divorce on the parties’ taxes, however, is often overlooked or misunderstood.

Divorce may affect your tax situation in a number of ways. The right to claim a dependent child will affect the amount of money owed or refunded at the end of the year. There may be money owed to the IRS from the sale of marital property, such as a house. Additionally, there are important things to know about the tax consequences of child support and spousal support payments.

Child support payments are treated as if they have no tax consequence: they are not taxable to the payee, nor are they deductible for the payor. However, spousal support typically is treated as income for the payee. As such, the payee generally must pay taxes on the spousal support payments received and the payor is allowed to deduct the money paid.

A more severe tax consequence may occur years after a couple divorces. Many married couples file their tax returns jointly. This means that each spouse has both individual and joint liability for any taxes owed for that tax year. In many cases, one spouse handles all of the finances for the household, including the taxes. If that spouse makes a mistake on the year’s tax return or purposefully claims less income than the household received, the other spouse is jointly liable for that error and any money owed to the IRS as a result.

The innocent spouse may have no knowledge that money was hidden or that the returns were done incorrectly. However, the IRS will still hold the spouse liable for the money owed unless a claim for “innocent spouse relief” is filed.

If you find yourself in a situation where the IRS is penalizing you for back-taxes owed from a year you were married and you had no control or knowledge of your financial situation at that time, you may be able to claim “innocent spouse relief.” A qualified attorney can assist you with reviewing your situation to determine whether or not you have a claim for “innocent spouse relief.”

Getting divorced is never easy. An experienced family law attorney will walk you through the process and ensure you understand the implications of divorce on all aspects of your life, current and future. For more information about the tax consequences of a divorce, please contact Banas Family Law for assistance.

Needs and circumstances change. When they do, a post-decree modification can realign court orders to match the interests of the parties and their new situations. Minnesota family law attorney Chris Banas assists clients in filing motions for the modification of child custody and parenting time agreements as well as child support and spousal maintenance orders.

Child Custody and Parenting Time Post-Decree Modifications.

When deciding issues involving a child, the court focuses on the “best interests” of that child. To ensure your child’s interests are thoroughly represented, you need to obtain the services of a qualified family law attorney.

Often, unless “the court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development” (Minnesota Statue 518.18(c)), there are time limitations imposed on when modifications may be filed and approved. Your attorney will assist you in determining whether you are eligible to file a modification.

Child Support or Spousal Maintenance Post-Decree Modifications.

When the financial circumstances of either party change, a modification of support is necessary. Orders involving how much, how long, and how often an obligor must pay an obligee are often based upon the obligor’s financial position and ability to pay, the obligee’s financial needs, and the income and expenses of both parties. A knowledgeable family law attorney can assist you in determining whether your situation warrants a modification, and will ensure that the court receives the necessary financial documentation.

To discuss your need for a Minnesota post-decree modification, contact Minneapolis family law attorney Chris Banas today. Call 651-361-8109 now.

Early Neutral Evaluation (ENE) is a short-term, confidential evaluative process designed to facilitate prompt dispute resolution in Hennepin County Family Court custody and parenting time (visitation) matters. The program, as offered through the Hennepin County Family Court, offers the evaluative impressions of experienced Hennepin County Family Court Services (FCS) staff to parties engaged in custody and parenting time disputes. Feedback is provided to parties and their Hennepin County divorce attorneys based on case presentations and a limited amount of information gathering. The ENE process is completed within one month.

1. At any point in the legal process, from the initial judicial management conference to a pretrial settlement conference, the judicial officer may refer parties and their attorneys to Hennepin County Family Court Services for an ENE.
2. A male/female ENE team of experienced FCS staff is assigned to the case.
3. Hennepin County divorce attorneys and parties meet with the ENE team within one week after the assignment. Each attorney or pro se party is asked to present the important issues in the case. Unless it is necessary to gather additional information, the ENE team provides immediate feedback about each party's case. Settlement possibilities are discussed and areas needing further scrutiny are identified.
4. The ENE team may gather additional information as necessary and the team may interview parties, interview child(ren), or gather limited collateral data.
5. The attorneys and parties may meet a second time with the ENE team to hear the team's assessment and recommendations. Settlement options for full and partial agreements are discussed. If the case does not settle, the team identifies critical issues that may need additional study.
6. If a full or partial settlement is reached, a copy of the agreement is sent to the judicial officer. If a full agreement is not reached, a report is made to the judicial officer by the ENE team regarding partial agreements that have been reached. The report may be written or oral. The ENE team members may not be called as a witness with respect to the information obtained or the recommendations made during the ENE process.  In addition to reporting full and partial settlements, the ENE team members may communicate with the judicial officer for the limited purpose of facilitating case management. For example, if one fact issue stands in the way of settlement, such as a chemical health issue, the ENE team may report the disputed issue to the judicial officer for case management purposes. Armed with such information, the judicial officer may opt for a chemical health assessment rather than a full-fledged custody evaluation.
7. If the case does not settle, the judicial officer consults with the parties and their attorneys to decide the next step, which may be mediation, an expedited evaluation of the remaining issues, or a full custody evaluation.

If you have questions regarding Early Neutral Evaluation in Minnesota, please contact Minnesota divorce lawyer Chris Banas: 651-361-8109.