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My ex-girlfriend will not allow me to see my son. What can I do?

This is a common question, and I am often giving the answer of: Nothing, until you go to court.

The grim reality is this: Fathers who have children that were born out of wedlock are at a legal disadvantage, unless and until they assert their rights in a court of law. When a child is born out of wedlock, the mother automatically has sole legal and sole physical custody of that child. Further, the father has no right to parenting time (visitation) unless the mother agrees. In addition, child support is independent of custody and parenting time. This means that a child support order may issue, without any reference to custody or parenting time.

Under Minnesota law, “marital property” is any property acquired by either spouse during the marriage, unless it:

“(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

(b) is acquired before the marriage;

(c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);

(d) is acquired by a spouse after the valuation date; or

(e) is excluded by a valid antenuptial contract.” (Minnesota Statute 518.003 Subd. 3b)

As noted above, an antenuptial, or premarital agreement, can affect the court’s determination of “marital” and “nonmarital” property by specifying what property is to be considered nonmarital in the event of divorce, separation, or the death of one of the parties.

According to Minnesota Statute 519.11, to be valid, the agreement must be signed prior to the date of marriage in front of at least two witnesses, be based upon fully disclosed financial information, and have been signed after each party had time to consult with an attorney.

For advice on either preparing or signing an antenuptial agreement in Minnesota, contact Banas Family Law at (651) 361-8109.

Child custody and parenting time evaluations, whether conducted by a private evaluator or court services, usually take anywhere from 3 to 6 months to complete. Once the evaluation is complete, your attorney will be given notice by receiving a copy of the evaluation. In some circumstances (which are rare), the evaluator will prefer to have a meeting with the parties and their attorneys to "review" his or her recommendations prior to the release of the written report. Most commonly, the report will be mailed to the parties' attorneys. [1]

Traditional divorces are often highly confrontational and antagonistic, causing undue stress on the individuals involved. This adversarial approach may make it difficult for the parties to work together after the divorce is finalized, particularly in regard to child rearing decisions and parenting time agreements. Luckily, there are other options available to those wishing to dissolve their marriage as amicably as possible.

Alternative dispute resolution processes help parties come to amicable agreements outside of the courtroom. There are several types of alternative dispute resolution, including: mediation, arbitration, collaborative law, and (in Hennepin county) early neutral evaluation. These resolution processes typically produce less stress, cost less and are resolved more quickly than a traditional divorce.

Meditation is a process through which the two parties, along with their attorneys, work together to reach a mutually agreed upon settlement. A highly trained third party, called a mediator, facilitates the negotiation. Mediation is non-binding, which means if the parties cannot reach an agreement the case may still proceed to court.

Arbitration is much like mediation, except that the third party, called the arbitrator, issues a final, binding decision. Due to its binding nature, and to the fact that obtaining an appeal is highly unlikely, arbitration is most often used to settle post-divorce issues, including those involving child custody and/or parenting time.

Collaborative law is a relatively new process through which both parties and their attorneys formally agree to work together to reach a settlement. If during the course of negotiations a settlement cannot be reached, the attorneys must withdraw and the parties must obtain new representation in order to proceed to court.

A process created by the Hennepin County Family Court, early neutral evaluation utilizes a team, made up of at least one male and one female, to evaluate the case and inform the parties of the most likely resolution if the case were decided by a judge. This enables the parties to understand what would most likely happen in the event they cannot reach an agreement. This process may be used in conjunction with mediation and collaborative law.

To learn if mediation or another form of alternative dispute resolution is right for your Minnesota dispute, contact Banas Family Law at (651) 361-8109.

In custody and parenting time disputes, the court may appoint a Minnesota Guardian Ad Litem to your case. The guardian, also known as a "GAL," acts on behalf of the children. Generally, Guardians Ad Litem are appointed when there are allegations of maltreatment or abuse, either emotional or physical.

The main responsibilities of the Gaurdian Ad Litem in Minnesota are:

Except for child custody issues, the division of marital property is often the most adversarial and stressful aspect of a divorce. Determining who gets what can be complicated. The overall division typically depends on whether the property, or asset, is deemed to be marital or non-marital in nature.

According to Minnesota Statue 518.003, Subd. 3b, “Marital property” is defined as all property, whether real or personal, “acquired by either spouse subsequent to the marriage and before the valuation date . . . regardless of whether title is held individually or by the spouses in a form of co-ownership.” This includes retirement accounts and vested public or private pension plan benefits or rights.

In Minnesota, the court presumes that “each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.” (Minnesota Statue 518.58, Subd. 1) As this is the presumption, the court strives for a “just and equitable division of the marital property,” and typically divides marital property equally between the parties. Valuations are generally based upon the date of the initial prehearing settlement conference, unless both parties agree to a different date.

But, what about assets held prior to marriage? If one spouse wishes to claim a sole interest in any asset, that spouse must provide proof that the asset is non-marital in nature.

“Non-marital property” refers to “property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e); (d) is acquired by a spouse after the valuation date; or (e) is excluded by a valid antenuptial contract.” (Minnesota Statute 518.003, Subd. 3b)

Proving that property is non-marital in nature can be extremely difficult. Often, property that was originally non-marital can become partially marital during the course of the marriage. As experienced Minnesota divorce attorneys, Banas Family Law can assist you in satisfying the burden of proof required by the court. If necessary your attorney may utilize the services of a forensic accountant to “trace” your non-marital assets and provide expert testimony on your behalf in court.

In a divorce, identifying marital and non-marital assets and understanding how a court renders its valuations is essential to ensuring that your financial interests are protected. Minneapolis family law attorney Chris Banas has extensive experience assisting clients in asset identification and valuation. To discuss your case, call 651-361-8109 now.

If there is a dispute in Minnesota over custody and parenting time, the court will likely order the parties to undergo some sort of "evaluation." "Evaluation" is a fluid term, and can mean a variety of things. To understand the "evaluation" itself and the process you will have to undertake, you must understand the different types of players who may be assigned to your case. The most commons types of "evaluations" and the professionals who conduct them are set forth below. Your particular case may include only one of these individuals or many.

Divorce can be complicated. Property must be divided, child custody agreements must be reached, and, sometimes, spousal maintenance (alimony) is considered. When one spouse owns a business, however, a Minnesota divorce can become a more arduous process.

These types of divorces typically involve larger assets that must be divided (both separate and co-owned), and there is generally a greater income disparity between the parties than in divorces where neither spouse owns a business. Additionally, there is an increased likelihood of one spouse being a stay-at-home parent, which may influence who the court views as the primary caregiver. Additional considerations include: the tax consequences of property division, and the fair-market value of the business.

In states with community property laws, each spouse is generally entitled to fifty percent of the business, regardless of who owned and operated it. In contrast, Minnesota is an “equitable distribution” state. This means the court will determine how to divide the marital property according to Minnesota Statute 518.58, subdivision 1:

“…the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage. The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.”

Divorces involving professional business owners (doctors with their own practices, for example) can carry long-term financial consequences. Due to the high stakes involved, it is imperative for each spouse to obtain the counsel of a qualified Minnesota divorce attorney.

To ensure your business assets are protected, 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.

Domestic violence is a serious issue in divorce and custody cases, not only in terms of the civil and criminal effects, but also in the direct impact it will have on your chances for custody. To put it simply, a finding of domestic violence (order for protection in civil court or a criminal conviction of domestic violence) can ruin a party’s chance for custody.

1. Do not put yourself in a situation where it is likely an argument with your spouse will ensue. A finding of domestic abuse by one spouse against the other makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. The specific language of the statute states: (d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents. The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. (Go to Minn. Statute § 518.17 for the full text of the statute.) Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota.  All rights reserved.
2. Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the children's presence. If your spouse tries to incite you, walk away. Something as simple as blocking someone’s exit from a room may be considered abusive.
3. If you are being abused or are in fear for your safety or for the safety of your children, call 911 right away.
4. If you are accused of being physically abusive, do not make any statements - to anyone! Call an attorney right away. Remember, statements you make to the police (and to others) can be used against you in a later proceeding. Assert your right to remain silent.

In civil court, a finding of domestic abuse will result in the issuance of an Order for Protection. An Order for Protection is a civil order (not a criminal conviction) directing the abusing party (Respondent) to, among other things, stay away from the abused (Petitioner) party's residence or employment. When there are children involved, a temporary custody award will be made. An Order for Protection is usually put into effect for one (1) year, and may be extended beyond one year for good cause. Below are some excerpts from an actual order:

• NOTICE ABOUT ARREST AND JAIL: A violation of this Order may be a misdemeanor, gross misdemeanor, or felony. A misdemeanor violation may result in up to 90 days in jail, or $1,000.00 fine, or both. A repeat violation may be a gross misdemeanor, and may result in up to one year in jail, or $3,000.00 fine, or both. A police office must arrest and take into custody a person whom the officer believes has violated this Order.
• NOTICE ABOUT DEPORTATION AND ENFORCEMENT: A violation of this Order for Protection is a deportable offense. If you are not a United States citizen, a violation of this Order could result in your deportation. This Order for Protection is enforceable in all 50 states, the District of Columbia, tribal lands, and the United States territories. Violation of this Order for Protection may subject the Respondent to federal charges and punishment.
• NOTICE ABOUT FIREARMS: The Respondent must not possess, ship, transport, or receive any firearm or ammunition while this Order is in effect.
• NOTICE ABOUT OTHER CASES: Both parties are notified that in any other case involving parenting time (visitation), the Court will consider this Order for Protection if the Petitioner so requests.

If you and your spouse/partner are still living in the same house, be sure to discuss with your attorney early on any concerns you may have about your spouse's temper or abusive tendencies.  Do you believe your spouse is violent or could be violent?  Do you believe your spouse would lie about what happened during an argument?  Do you believe he or she would say you hit, grabbed or pushed him or her?   If you answered YES to any of the above, you should call your attorney immediately. Disputes "behind closed doors" are very difficult to defend, and not all domestic disputes involve the police or any written report for that matter. Sometimes I advise parties to physically separate themselves early on in the proceedings to eliminate even the chance of a spouse making a claim of domestic abuse.

Learn More -- Visit our articles and resources for more Minnesota family law information on Minnesota Divorce,  Child Support & Spousal Maintenance, Custody & Parenting Time and More.

If you would like to have a consultation with a Minnesota divorce lawyer, please contact attorney Chris Banas at  651-361-8109.