Family Law Information

Family law interacts with many areas of the law, from custody and support to valuing a business and/or real estate, as well as determining income. Family law can also be stressful and emotional. It is important to have an attorney on your side to help guide you through these difficult times and craft the best resolution possible for you and your family.

At Gerten and Van Valkenburg, PA, our family law attorneys are dedicated to easing your burden. We know that making decisions when emotions run high is difficult, and that's why we take the time to get to know our clients and work with them to get to where they need to be. Our attorneys work diligently to ensure that their clients are given the best representation possible.

Family law is also an area where there is a lot of confusion. Legal jargon is difficult to understand, but it is important that our clients are fully cognizant of what is happening. To that end, we explain, in plain English, what the law and court rules mean. Your attorney is working with you and on your behalf to make sure your decisions are the ones that will best benefit you and your family. We work on issues ranging from filing for divorce, to custody, adoption and paternity matters to drafting prenuptial agreements

At Gerten and Van Valkenburg, PA, we have been serving the Twin Cities and surrounding communities since 1959, and in that time we have become experienced in all areas of family law. We are an integral part of our community and are willing to go to bat for you.

If you are interested in learning more about family law and what it comprises, we have set up a quick summary of major topic areas. If you have any further questions, feel free to contact our firm to set up an appointment so that we can help you solve your problems.

Marriage

Marriage is the culmination of a relationship between two people, but it is also a legal and business union. An experienced family law attorney can guide you through financial issues and the legal ramifications of a marriage on your own property. Some couples enter marriage with substantial assets, either because they have married later in life or because they are entering a second marriage, a prenuptial agreement may be a good option to help things go smoothly.

Divorce

A divorce is not only the end of a personal relationship, it is also the legal termination of a legal marriage contract between two people. Divorce is fraught with emotion, and it is in your best interest to have an attorney on your side in order to safeguard your rights. A divorce legally restores a person's right to marry another. It also divides marital assets and debts; how this is determined often begins with determining the validity of a prenuptial agreement, if one exists. While there is, in general, uniformity to the standards and principles for filing for divorce, each state handles this issue in its own way.

While a few states continue to require a finding of fault for divorce [also known as ground for a divorce], most states including Minnesota allow no-fault divorce. In a no-fault divorce, neither spouse is required to prove that the other caused the breakdown of the marriage; there is no blame laid. In Minnesota, where no-fault divorce is available, either party may obtain a divorce, even if the other party does not consent.

There are many issues to be sorted out during a divorce. If there are children, then child custody and support and visitation scheduling are worked out by the parties involved. Issues of spousal support and the division of assets and debts are also negotiated by the parties and then presented to the court. If the parties work together to dissolve the marriage, then the divorce can be granted quickly, within the statutory time frame. If parties are contentious, then the divorce proceedings will drag on. A good family law attorney will work to protect your rights and further the best interests of any children involved while still working toward a fair and equitable resolution.

Child Custody and Visitation

Issues of child custody and visitation are often the most emotional ones encountered during a divorce proceeding. Both parents are interested in the well-being of their children, but their beliefs and methods of upbringing may differ greatly. This is a stressful time, not only because of the dissolution of the marriage, but also because of the dissolution of the family.

Child custody concerns not only physical but also legal custody. Physical custody deals with the day-to-day care and activities of the children. It sets out the rights and responsibilities of both parents and how and where the children will reside. Legal custody deals with the legal rights and responsibilities of the children. If parents cannot sort out their issues and come to an understanding, the court will step in and make its own determination as to the physical and legal custody of the children.

Historically, mothers were given physical custody. Fathers were given visitation rights. Today, joint physical custody is increasingly more common, where both parents are responsible for the day-to-day physical needs of the children. Courts will also give sole custody to the father if that would serve the best interests of the children. An experienced family law attorney will work with you and the other parent in order to work out the best possible custody arrangement that will further the best interests of the children.

Child Support

When parents are married, the support of their children is assumed; both parents support the children, either financially or as a full-time caregiver, until each child reaches the age of majority [this can be either 18 or 21 years old, depending on the state]. When parents divorce, the issue of child support can sometimes be contentious.

A court order for child support can be entered either during the divorce proceedings, or after the divorce has become final. Either parent may be required to pay support, depending on the custody settlement. A woman who is unmarried can petition the court for child support once the child's paternity has been established.

When a parent fails to pay the court-ordered child support obligations, he or she can be brought before the family court to enforce the order. Each state has its own child support enforcement office that works in conjunction with the family court; states now are able to work with each other more quickly in sharing information on those parents who fail to pay support. The penalties vary and escalate in severity. The court may suspend a professional or business license, a driver's license or even a recreational license. The court may order a non-paying parent to pay future support payments in advance. If a parent fails to pay, they may even end up in jail.

At Gerten and Van Valkenburg, PA, we are ready and able to work with you and the family court in order to obtain the child support payments you were given.

Adoption

The best part of family law is adoption. The creation of a family takes many forms, and we are ready to help your family grow. Adopted children will receive the benefits the law grants to natural born children, and are also afforded the same legal duties of care.

Adoption requires the approval of the court. Both foreign and domestic adoptions have their own specific rules and regulations, and each state has its own procedures. There are procedures to determine the fitness of prospective parents, and we can help you work through the policies that oversee this aspect of family law.

Family law covers a variety of topics affecting all parts of the family. From marriage to divorce to adoption, Gerten and Van Valkenburg, PA, are here to help you navigate these often emotional and stressful waters.

CHILD SUPPORT

Each state has its own guidelines for establishing child support. There is a uniformity to these laws, as well as federal legislation, that serves to make collection of child support payments easier to collect. The family court follows a particular formula to set the support amounts. When payments are missed and become overdue, a family law attorney can help you work with the child support enforcement agencies to collect what is owing. If paternity is an issue, your attorney can help you establish paternity in order to collect the support due to your child.

The Basics of Child Support

Parents are required to financially support their child until that child reaches the age of majority. In Minnesota it is when they graduate from high school. If the child lives with one parent, the other parent is generally obligated to fulfill their financial duty through court ordered payment of child support.

The financial circumstances of the person who has the child living with him or her is relevant to the determination of child support. The income of the parent who must pay child support is taken into account, as well as the determination by the court of the needs of the child. These guidelines are established by the family court of each state and are used unless persuasive evidence to the contrary is presented. A parent may have income or earning capacity determined for them, even if they do not actually earn that amount.

Enforcing Child Support Orders

Even if child support is ordered by the court, there are occasions where the paying parent will not uphold his or her duty. The family court may order temporary support to be paid during the divorce proceedings and then order a permanent support. For an unmarried parent, the establishment of paternity serves as the catalyst for ordering support from the non-custodial parent.

Child support payments are paid at regular intervals. In many jurisdictions, the amount due comes directly out of a parent's wages. Minnesota has a child support registry which collects payments, records them and then sends them to the custodial parent. These registries are supported by the government, which works to collect information and enforce child support orders.

If payments are not made, the court may order that licenses are suspended, that wages are garnished, that future payments are made in advance, or even that the non-paying parent is put in jail until they are in compliance. Federal laws exist which make it a crime when a parent who owes child support does not pay and lives in another state.

Modifying a Child Support Order

Either parent may request a modification of the child support order determined by the court. Several states require periodic reviews of existing orders. If the paying parent's income has increased, the amount they owe may be increased, particularly if the amount being paid no longer meets the child's needs. This is particularly the case where the child has special needs, or is in need of new things like tutoring, therapy or a medical treatment.

Conversely, a paying parent who has lost his or her job may request a decrease in the amount of support they owe. They may also request a decrease if the custodial parent's income has increased.

DIVORCE

A divorce is never easy on anyone. It is not a decision any couple comes to lightly, particularly if there are children involved. The emotions that accompany a divorce can make it particularly difficult to deal with the legal and financial matters that need to be addressed. Our family law attorneys are compassionate and experienced and know how to work with clients whose emotions are raw and who are unsure of their next steps.

No-fault Divorce and Grounds for Divorce

In the past, when a person filed for divorce they had to proved grounds [or fault] in order to obtain the divorce. Today, almost all states allow some type of no-fault divorce, which does not require grounds to be proven. Minnesota is a no-fault state, which means that either you or your spouse can file for and be granted a divorce, even if the other does not consent.

However, even though there is no requirement of finding fault for a divorce, each party's behavior is taken into account when determining things like spousal support or child custody. What this means is if one party liquidates his assets while divorce is imminent, those assets are still taken into account when determining the allocation of assets for purposes of division of property and spousal support. Also, if one parent is involved with illegal drugs, that is taken into account when determining the best interests of the children with regard to custody and support.

Alimony / Spousal Support / Maintenance

When two people get divorced, there is a division of property. The assets and debts are determined and the property is split according to the state's formula for division. Each state has its own formula; our attorney are well-versed in Minnesota's spousal support and division of property issues, and will make sure that your assets are protected.

There are different types of spousal support, or alimony, called maintenance. There is permanent maintenance and temporary or rehabilitative maintenance. Permanent maintenance is a set amount, determined by the court, that one spouse pays the other for living expenses, such as a housing, food, clothing, and other necessities. The party requesting support must show need of that support and also must show that the other party is able to provide the amount requested, either in whole or in part. Reimbursement and rehabilitative alimony are paid out for shorter periods of time and are often for less than the standard of living than when the couple was married. Rehabilitative alimony is paid so that the supported spouse is able to gain or enhance job skills in order to provide for him or herself.

Courts have criteria that they follow in order to determine spousal support and maintenance. These include things like the spouse's ability to pay, the length of the marriage, the health and their education and employment opportunities. The receipt of maintenance is often income to the recipient and a deduction for the payor.

Property Division

With the dissolution of the marriage comes the division of property. There are two types of systems for dividing property – community property states such as Wisconsin, where both parties are presumed to jointly own property acquired during marriage; and equitable distribution, which is followed in Minnesota where marital property is divided without regard to marital fault, and will base the property distribution on the following factors:

The length of the marriage,

The age, health and occupation of each party,

The income, income potential and vocational skills of each party,

The contribution of each spouse to the marital property, including the contributions of a homemaker

Because this factoring can become complicated, a knowledgeable family law attorney will be able to make sure that your marital property is divided equitably.

Ending a marriage is a difficult, emotionally fraught process. Making the decision to end a marriage is painful and hard. However, it is in your best interest to find an attorney who will keep your best interests at the fore while working professionally to end your marriage on your terms.

CUSTODY AND VISITATION

Parents who divorce are faced with a particularly difficult set of circumstances. The decisions to be made about child custody, visitation and possible adoption are difficult and emotional. Our family law attorneys know the legal avenues to pursue when there issues about your children following a divorce. Many couples, with the help of their attorneys, are able to work out child custody and visitation issues without court orders. However, there are those situations where no agreement can be reached and the parties are unable to work together. In those circumstances, your attorney is your best hope for obtaining the child custody set up you want.

The Basics of Child Custody

Physical custody is the duty to provide day-to-day care for a child. The parent with physical custody will also direct the child's daily activities. Legal custody encompasses the rights and responsibilities regarding the child's upbringing.

Sole physical custody is when one parent has the exclusive right to have the child live with him or her. Sole legal custody means that one parent will make all the decisions regarding the child's upbringing. A common type of sole custody is where one parent has sole physical custody and both parents have joint legal custody. The non-custodial parent has a generous visitation schedule with the child. The visitation is a means for the non-custodial parent to continue to maintain contact with the child.

Joint custody is where both parents share the responsibility for making decisions for the child's upbringing, or for the physical control and custody of the child, or for both.

Split custody is where each parent takes custody of a particular child. This option is not popular, as the best interests of the children must be taken into account. Courts like to keep the children together even if the parents cannot be.

Shared parenting is a newer concept in custody decisions. The children spend equal amounts of time with each parent and the parents share both legal and physical custody, making decisions for the best interests of the children. Child focused schedules must be developed and require significant effort to implement.

Determination of Custody and Visitation

Some couples are able to work together to create custody decisions and visitation schedules that best fit their family. Courts will honor both long- and short-term custody agreements made by parents. While each family is unique, there are procedures in place the courts use in order to ensure that those families who are having difficulty in resolving their custody issues are able to come to agreements which serve the best interests of the child. Courts will use the following methods in order to resolve these issues:

Temporary Hearings. A temporary hearing if requested by the parties is held by the court as soon as divorce papers are filed. If custody is contested, the court will determine a temporary custody arrangement that will remain in effect until the final divorce decree is issued.

Custody and Mediation. Mediation is an alternative form of dispute resolution where both parties meet with a trained neutral third party to resolve any contested issues. Mediation in a contested divorce is required by most states. Some contested issues include child custody disputes. Parties can resolve these disputes through mediated hearings rather than through adversarial hearings. The resolutions are presented to the court and included in the divorce decree. Couples can include a provision requiring mediation to resolve any potential future disputes.

Custody Evaluations. In cases where parties are unable to reach an agreement on custody, the court can order a custody evaluation before the trial begins. The evaluation is conducted by an outside expert. The court will rely on that expert's opinion when determining custody arrangements in the best interest of the child.

Custody Trials. When parents simply cannot agree on custody issues, or when custody issues later must be amended, the court will follow the state statute and procedures for settling these very important issues. In Minnesota, as in most states, the best interests of the child are the paramount concern. Factors that are considered by the court are the child's age, the child's attachment to the parent who acts as primary caregiver – this may be either the mother or the father – and the physical and mental health of each parent. Also considered are issues such as the existence of domestic violence and the child's wishes.

Modifying Custody and Visitation

The final divorce decree will contain the final custody and visitation agreements. However, circumstances change as children grow, and often parents will revisit these agreements. In order to change the custody agreement, the parents and court must follow specific procedures. Often, there will be mediation required, so that the parents and neutral, trained third-party can meet and modify the agreement as the need to. If a parent wishes to modify the agreement, he or she must petition and show the court that a substantial change in circumstances has occurred, and the child would be in danger if the current agreement continued.

Making decision about your child's future is always marked by the best intentions. When parents divorce, those intentions may differ, and it is important to remember that the child's best interests are paramount. There are many options for custody for parents who are divorced. Courts encourage parents to work together in the best interests of the child when making decisions regarding the child's upbringing. An experienced family law attorney can help you negotiate custody terms that you and your child will favor.

MARRIAGE

Marriage is a personal, private commitment between two adults. It is also a legal relationship that changes the status of the parties involved. Our family law attorneys are knowledgeable about the legal ramifications a marriage will have on you. Both spouses have the same rights in marriage; it is important to understand them. There are also rules governing marriage; many are uniform across all states. They are as follows.

Who can marry. It seems as if the easy answer would be to marry who you love. However, there are limits as to who may marry. All states prohibit marriage between brothers and sisters, parent and child. Some states prohibit marriage between and aunt or uncle and a niece or nephew. Some states will allow marriage between same sex partners, but most do not.

Age at marriage. Every state has an age requirement for marriage. Generally, this is 18 years, but some states allow marriage at 16. A number of states allow marriage at a younger age if there is parental consent.

Residency. Many states require residency before marriage license are issued. This means that one or both parties must reside in the state for a specific period of time before the license is issued.

Ceremony. Several states require the parties to have a formal ceremony with witnesses and licensed public or religious official presiding.

Marriage confers a number of legal benefits. Among them are Social Security benefits; property rights; rights to inheritance; and the right to make medical decisions on a spouse's behalf.

Common Law Marriage

Couples who have lived together for a considerable length of time often think of themselves as being common law married. They assume that this status confers the same rights and obligations as married couples. Minnesota does not recognize common law marriages. If however the marriage was valid in the area you were married it will be recognized in Minnesota even if it would not otherwise be consider valid.

Prenuptial and Cohabitation Agreements

A prenuptial or cohabitation agreement is a good idea for couples considering marriage or living together. This type of agreement sets out the expectations and responsibilities of each party, particularly with regarding to property division. The agreement will offer an outline for resolving monetary issues during the marriage or relationship. It will also be beneficial for determining how the property is to be divided if the relationship ends. Our family law attorneys are experienced in creating agreements which will be upheld in the event a relationship ends. They are knowledgeable about what the courts will accept and how to craft an agreement that is fair and protects your rights.

Marriage is an undertaking fraught with emotion and personal meaning. Because it is also a affects your legal status, it is important to have a clear eye when considering how you and your partner will resolve important issues as time goes by. Our family law attorneys work with you, helping you get the best out of your relationship.