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Minimizing the Impact of Divorce on Children

Minimizing the Impact of Divorce on Children

Children Need Love and Support and Not Judgment

I subscribe to several different social media outlets regarding family law and just yesterday I read an article about a survey done in Australia about the impact of divorce on children. In the article, the author repeatedly referred to children who had been raised in a “broken home”, which meant their parents were divorced.

It made me wonder: what is a broken home? The author’s perspective is that a home without married parents in it is somehow “broken”; I believe a home with two parents who do not respect and love each other is a more accurate definition of a broken. A home where mom and dad do not provide a loving and safe environment is broken. A home where children are not cherished and supported is broken. I know lots of people who grew up in what I would call “broken” homes but their parents were married and living in the home with them. Regardless of how many parents are in a home, a home where people are loved and respected is certainly not a broken home.

I would argue that the author’s own perspective is the very problem for children whose parents are divorced. It is society which has decided that children raised in a home without two parents are somehow inferior. We are led to believe that they are destined for a life of failure because their parents divorced, or never married. In an effort to value marriage, somehow society has stigmatized children who grow up in homes without two parents. We should value marriage while also respecting the fact that some people, for a variety of important reasons, need to be divorced.

Until we can shake off the stigma of divorce, children will be embarrassed by their situation. Of course the ideal family situation for every child would include parents who are happily married and supportive of each other as well as their children, but having one parent who supports and loves a child more than anything in the world is equally wonderful, and some children have two parents in different homes giving them all the support anyone could imagine. Any child who has the unconditional loving support of any adult–parent, grandparent, neighbor, or guardian–is fortunate and has a great chance of success.

There is nothing broken about a home where a parent does everything possible to give her or his child the best life possible; those who choose to judge are broken.

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FINANCIAL DISPUTES IN A DIVORCE CAN BE SETTLED IN AN FENE

FINANCIAL DISPUTES IN A DIVORCE CAN BE SETTLED IN AN FENE

Child support, spousal maintenance, property division, and business valuations are just some of the financial issues which might need to be settled during a divorce. Parties who are willing to participate in the FENE process choose an evaluator to provide his/her professional opinion about how the court might address their financial issues. The evaluator also helps parties reach an agreement which both parties can accept.

Parties can participate in an FENE with or without an attorney. The evaluator is a neutral and does not represent either party. While the evaluator can offer his or her opinion about how a court might rule, the evaluator may not offer legal advice to either party, even though the evaluator may be an experienced family law attorney.

It is not uncommon for parties to meet more than once for an FENE. An initial meeting usually lasts about three hours and it is possible to reach an agreement in that time. In more complicated cases though, the initial FENE may be used to determine what the issues are and to determine what documents or information is still needed before the parties can begin to divide assets and debts or before a determination of spousal maintenance can be made. Parties might need time to gather more documents and then they might meet again to actually divide assets and debts or to discuss support issues.

If parties are unable to reach an agreement on all financial issues, it is possible for parties to reach partial agreements in an FENE. Parties might come to an agreement on dividing retirement assets and property, but not on spousal maintenance. Any agreements reached in a divorce are issues that will not have to put in the judge’s hands and issues parties do have to argue. For example, if parties agree to the value of the home in an FENE, they will save themselves the cost and hassle of getting an appraisal of the home.

An FENE is an opportunity for parties to keep control of how their property will be divided rather than putting the decision in the hands of a judge. Parties can use creative options that suit their unique circumstances when they reach their own agreements. The FENE process can also be a valuable experience in assessing the strengths and weaknesses of a case and in gathering needed financial information.

Experienced Family Law Attorney Christine Callahan is also a Rule 114 neutral, Mediator, and is on the court roster of SENE and FENE evaluators in Scott and Carver counties. Whether you need an attorney who understands the process inside and out, or you need an experienced evaluator, contact us today. 952-746-2350 or ccallahan@tbattys.com

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SENE IN A MINNESOTA DIVORCE

SENE IN A MINNESOTA DIVORCE

An SENE is a “Social Early Neutral Evaluation”. It is a voluntary process parents may choose to participate in when they disagree about custody or parenting issues. The SENE is used in divorce cases as well as in custody cases, and can also be used for post-decree disputes. It is an alternative dispute resolution process similar to mediation. Unlike mediation, there are typically two evaluators for an SENE and ideally there will be an evaluator team of one male and one female. It’s ideal because each parent can relate to one of the evaluators.

During an SENE, each parent is given time to present their perspective about their own relationship with their child (children) and to present their opinion about what parenting time and custody arrangement would be in the child’s best interests and why. The Petitioner in the legal matter will present first. There is no advantage to presenting first because both parents are given a chance to talk without interruption by the other parent and both parents are given an opportunity to respond to the other parent’s comments.

EVALUATORS PROVIDE EXPERIENCED PERSPECTIVE

Unlike a non-evaluative mediation, the evaluators are expected to provide their professional opinion about how a court might rule on the specific custody and parenting time matters. It can be extremely helpful for moving parents toward an agreement when one parent has taken an unreasonable stand. The evaluators are not judges and their recommendations are just that, only suggestions.

The ultimate decision to reach an agreement or to let the judge decide custody and parenting time is entirely up to the parents. The process helps parents decide whether the cost and time of litigation might be worth spending based on the feedback they get from the evaluators.

The SENE process can save parents not only money, but it can also spare them the emotion of litigating the most personal issues in a divorce. Children are the biggest winners when parents can reach agreements without litigation regarding custody and parenting time.

Experienced Family Law Attorney Christine Callahan is also a Rule 114 neutral, Mediator, and is on the court roster of SENE and FENE evaluators in Scott and Carver counties. Whether you need an attorney who understands the process inside and out, or you need an experienced evaluator, contact us today. 952-746-2350 or ccallahan@tbattys.com

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WHAT IS AN ICMC IN A MINNESOTA DIVORCE?

An ICMC is an Initial Case Management Conference in a divorce or custody matter. The ICMC is scheduled by court administration and is held in a court room.  It’s essentially a chance for the judge to meet the people who are divorcing, or asking for custody, and explain how beneficial it will be for them to reach an agreement regarding the unresolved issues rather than leave it in the judge’s hands.

Each party provides financial information so the judge can determine whether the parties qualify for reduced fees or whether one party should pay more than 50% of the fees for the early neutral evaluation (ENE) process. The judge can also make recommendations for moving forward in cases where one spouse is afraid of being harmed by the other spouse.

FAST AND INEXPENSIVE WAY TO SETTLE DISPUTES

The ICMC is scheduled much faster than a motion hearing would be scheduled because the idea of an ICMC is to encourage people to work toward an agreement before they get too embroiled in a fight. They are encouraged to maintain control over their own divorce by working with professionals on a court-approved roster of mediators who can offer their professional insight into the strengths and weaknesses of the case for each party while helping them reach their own resolution.

The parties can agree to attempt to reach a resolution through the early neutral evaluation process, or they can choose to skip that step and move straight into litigation. At any point of the process, parties can reach a settlement on their own or with the help of their attorneys.

Experienced Family Law Attorney Christine Callahan is also a Rule 114 neutral, Mediator, and is on the court roster of SENE and FENE evaluators in Scott and Carver counties. Whether you need an attorney who understands the process inside and out, or you need an experienced evaluator, contact us today. 952-746-2350. ccallahan@tbattys.com.

Following the ICMC, there are two separate processes to address parenting/custody issues (SENE) and financial issues (FENE). See our blog posts addressing those specific processes for more details.

 

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Can Working Over-time Work Against Your Child Support Case?

How is “Over-time” Treated in Child Support Calculations?

When determining child support, Minnesota law states there is a presumption that every parent can work 40 hours a week (unless there is a disability, or a few other exceptions). If a parent chooses to work more than  40 hours a week, how is that additional pay handled in the child support calculations?

Generally speaking, pay received for work beyond a 40 hour week is not considered for child support calculations as long as child support is ordered in an amount at least equal to the guideline amount based on gross income and as long as:

  • the overtime began after the petition for child support was filed;
  • the overtime reflects an increase in the work schedule or hours worked over that of the two years immediately preceding the filing of the petition;
  • the excess employment is voluntary and a not a condition of employment;
  • the excess employment is additional, part-time, or overtime employment compensable by the hour or fraction of an hour; and
  • the party’s compensation structure has not been changed for the purpose of affecting a support or maintenance obligation.

It is not uncommon for parties to feel a financial pinch following a divorce and taking on a second job, or working overtime, may be the only way for a parent to make ends meet. There are circumstances though where overtime may be considered in a party’s gross income for child support. Usually in cases where a party is expected to overtime or in cases where a party has always worked overtime and that was part of the family’s financial support when the parents were married.

Determining child support can involve a complicated legal analysis and even small details can make a difference from one case to the next. The best way to determine the of child support due in any case is to consult with an experienced family attorney. Christine Callahan has represented obligors and obliges alike and she can help you analyze the possible outcomes for child support in your case.

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Are Commissions and Bonuses Income for Child Support Calculations?

How do commissions and bonuses factor into child support when they vary month to month and year to year? When determining child support, the court determines the gross income for each party, and then puts that income in the guidelines child support calculator. The calculator determines what each party should owe for child support and factors in parenting time as well as health and childcare costs.

The first step though is determining gross income. For parties who have a full-time job and a salary or an hourly wage, determining gross income is as simple as looking at each party’s W-2. For parties who have a base salary plus commissions or bonuses, determining gross income is a more complex process. Gross income is defined in Minnesota Statute 518A.29 as “any form of periodic payment to an individual, including, but not limited to, salaries, wages, commissions, self-employment income……”

When commissions are varied from month to month and year to year, it can be difficult to set c/hild support based on commissions. One method of factoring commissions into a gross income amount is to take an average of the commissions using employment records over the past year or more. If a party has a new job, or hasn’t been at the job long enough to show a pattern of commissions, it may be very difficult to factor commissions into the child support calculation.

The most difficult scenario is the situation where commissions may have been historically high but due to economic factors, commissions and sales opportunities have dropped. The court has to balance the interest in providing children the support they deserve, and the realistic income available for support. As you can imagine, this can be a complex balancing act.

Bonus income can be even more problematic. While bonuses are generally not guaranteed (thus not “wages”), there are situations where an employee regularly gets his/her bonus. If an employee has historically received a bonus every quarter, or year, in which a bonus is available, the bonus income may be considered “regular” income for determining gross income under Minn. Stat. 518A.29. If a party has not gotten every bonus, it will be more difficult to claim the bonus is regular income for child support purposes. Similar to commission, a new job or an industry experiencing a downturn may be a difficult situation in which to calculate a bonus because the bonus history is not reliable.

Determining child support can involve a complicated legal analysis and even small details can make a difference from one case to the next. The best way to determine the of child support due in any case is to consult with an experienced family attorney. Christine Callahan has represented obligors and obligees alike and she can help you analyze the possible outcomes for child support in your case.

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What Matters in a Custody Dispute? Lessons from Usher

Once a court established custody, it can be difficult to change in the future. By now, you have likely heard about the unfortunate incident which occurred last week when entertainer Usher’s four year old child almost drowned. The child’s aunt was watching him while Usher was in the recording studio and the child dove down to the drain in his aunt’s pool to get a toy. The pressure from the drain sucked the boy to the bottom of the pool and his aunt and another woman at the home could not pull him off the bottom of the pool. Two contractors doing work at the house managed to pull him off the drain and resuscitate him. He is now recovering in the hospital. When the child had only been in the hospital for hours, Usher’s ex-wife filed papers with the court stating that custody should be changed from Usher to her. Some thought it was very bad taste for her to be contacting her attorney when she should have been focused on her son getting well. Many think she doesn’t have a case to change custody at all. Even though the child could have been killed, did anyone do anything wrong?

In this situation, the child was being watched closely. The child was not doing anything dangerous. The danger was a drain which has injured and killed many children, but which is not required to be replaced in home pools. Usher was not negligent in any way (and neither was the child’s aunt who was watching him) and he was not charged with child endangerment or any other crime. Once a court has established custody, it is difficult to change without proving the child is in danger or the child will likely be harmed by the current custody situation.

Accidents happen. Children fall off their bikes, they take chances they should not take and sometimes they get hurt. The fact that a child gets injured does not in and of itself mean that a parent is at fault. On the other hand, children should be supervised. Parents are required to provide rules and supervision to keep children safe. Common sense can usually guide you as to whether an incident is worthy of going back to court to change custody or parenting time. Before you call an attorney, ask other parents what they think about an incident and whether a parent was negligent for any injury.

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