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Family Law
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Family law is an area of law
comprised of dissolution (divorce), custody/visitation disputes,
maintenance, division of marital property, adoption, paternity, and
similar family oriented legal issues. Dissolutions divorces may be highly
complex matters or they may be uncontested and reasonably simple.
Click on an Item Below:
DIVORCE/DISSOLUTION
UNCONTESTED DISSOLUTION
CUSTODY/VISITATION DISPUTES
PATERNITY
MAINTENANCE
MARITAL PROPERTY
DIVORCE / DISSOLUTION:
Dissolution of a marriage or divorce, as it is more commonly known, is a
legal proceeding to end a marriage. A Court Order for dissolution will
cover all of the aspects of the end of the marriage, including parenting
time (formally referred to as custody and visitation), support for the
minor children, spousal maintenance (formerly called alimony),
distribution of assets, distribution of debts, distribution of property,
and pension/retirement accounts. Minnesota is referred to as a no fault
state, which means that once the parties have shown that there is an
irretrievable breakdown in the marriage relationship, no further fault
needs to be apportioned to either party. The parties must be convinced
that there is no reasonable prospect for reconciliation, and that the
marriage cannot be saved.
In most cases, one party must live in Minnesota for 180 days prior to
filing for dissolution so that Minnesota has jurisdiction over the
dissolution. A dissolution action could take as little as a few weeks and
as long as several months to be completed. The determining factors over
the length of time it takes to get a dissolution are the complexity of the
dissolution (the number of assets and debts), the level of cooperation and
agreement between the parties and the availability of court time on the
calendar. A dissolution is not effective until a district court judge
issues a Judgment and Decree which is entered into the court record.
Uncontested dissolutions can be done in a fairly expedient matter, but it
requires a high degree of cooperation between the parties and agreement on
the issues. Eskens, Gibson & Behm Law Firm, Chtd. handle all matters of
dissolution and family law practice and offer flat rate fees for
uncontested dissolutions.
UNCONTESTED DISSOLUTION:
An uncontested dissolution is the name given to those divorces where
the parties are in agreement on all issues. For example, sometimes married
couples mutually agree that there has been an irretrievable breakdown in
the marriage and that a divorce is necessary. They sit down and figure out
what assets they have, what debts they have, and apportion those out in a
fair manner and in a way that each party is in agreement with the outcome.
If there are children in this marriage, the parties agree which parent
will be the primary caretaker for the children and how much parenting time
the other parent will have with the children. They agree to an appropriate
level of child support consistent with the child support guidelines and
they agree on all other matters, including who stays in the home, what
personal property each party gets and how to divide up other assets
including pension accounts. Where the parties are able to reach that level
of agreement, Eskens, Gibson & Behm Law Firm, Chtd. offers a special flat
rate fee to prepare the appropriate documents, file them with the court
and make sure that the agreements reached by the parties are consistent
with the laws of the State of Minnesota. Eskens, Gibson & Behm Law Firm, Chtd. will prepare the
necessary Summons and Petition, Marital Termination Agreement,
Stipulations, and necessary Orders. At Eskens, Gibson & Behm Law Firm,
Chtd. it is our philosophy that we not inject conflict into what is an
already stressful event. However, be assured that if you are facing a
contentious divorce, the attorneys at Eskens, Gibson & Behm Law Firm,
Chtd. will fight to make sure that our clients are protected and receive a
just settlement. If you or someone you know is facing the prospect of an
uncontested dissolution or would like to talk to one of the attorneys at
Eskens, Gibson & Behm Law Firm, Chtd. further, please contact us at
507-345-5500 or if you are calling long distance, 1-866-MANKATO(1-866-626-5286).
Can the parties use the same lawyer?
Often times parties to a dissolution
want to use the same attorney in order to reduce the attorney’s fees
involved. Where the parties are in agreement on the terms as in an
uncontested dissolution, then using a single attorney will often have
substantial savings.
Be careful, however, in using a single attorney. Under the rules of
ethics, an attorney cannot represent both parties in a dissolution. Where
the parties use a single attorney, that attorney would represent one of
the spouses by agreement and the other spouse would have to waive any
conflict of interest or confidentiality issues by using the same attorney.
If at any point during the processing of the uncontested dissolution an
issue is raised which creates disagreement, the party who is not
represented will have to find an attorney of his or her own or proceed
without legal counsel to try and resolve the disputed issue. As we stated
before, it is our philosophy at Eskens, Gibson & Behm Law Firm, Chtd. to
make the dissolution process as painless as possible. Where it is
appropriate, we will work with both parties in an uncontested dissolution
(within the restrictions stated above).
CUSTODY / VISITATION:
As of January, 2001, Minnesota has adopted changes in its dissolution law
with regard to parenting time (custody and visitation). In the past,
Minnesota has used the terms custody and visitation when dealing with
raising the children after a dissolution. Before the change, custody was
divided into two forms: legal custody; and physical custody. Legal custody
is decision-making involvement with the child, such as where the child is
going to go to school. In the majority of divorces/dissolutions, the
parents will share that legal custody and decision-making power regarding
the children. Physical custody, in the past, referred to the actual
day-to-day care and raising of the children. Physical custody could be
assigned to the parents jointly, or one parent would be considered the
sole custodial parent and the other would have visitation rights.
In an attempt to lessen the animosity in custody battles, the legislature
adopted as of January 1, 2001, a new custody/visitation statute. Under the
new statute, each parent is apportioned parenting time, thus doing away
with custody/visitation language. One parent still remains the primary
caregiver, or in the case of joint custody, both parents could have equal
involvement in the raising of the child. (Joint custody, however, is
reserved for those situations where the parents can get along well enough
to work together in the raising of their children). The parent who is not
the primary provider would then be responsible for child support, which is
an amount based upon a percentage of that parent’s monthly income. If you
are paying child support, please be aware that you may not stop child support
payments just because you are being deprived or your right to parenting
time or visitation. If you have an issue regarding custody, visitation or
child support and need representation, contact the attorneys at Eskens,
Gibson & Behm Law Firm, Chtd., 507-345-5500.
PATERNITY:
When a child is born to an unwed mother, the law gives to that mother,
sole custodial rights for that child. The father may be identified on
documents such as a birth certificate or acknowledgement of parentage, but
is not as a matter of law the father of that child for the purposes of
establishing visitation or custody (parenting time). Before the father may
establish visitation or custody, he will need to bring an action in court
establishing that he is the father of this child. Once he has a judicial
determination that he is the father, he may then seek a court order
granting him an appropriate level of custody or visitation. A father may
be declared the father of a child for purposes of child support, but still
not have the necessary authority in law to seek visitation or custody (parenting time) because he
has not been adjudicated the father for purposes of parenting time. If you
have an issue of paternity and need representation, contact the lawyers at
Eskens, Gibson & Behm Law Firm, Chtd 507-345-5500.
MAINTENANCE:
Maintenance (formerly known as alimony) is payment of money on a regular
basis from one ex-spouse to the other during or following a dissolution.
The payments may be for a specific length of time or may last
indefinitely. They are based upon one spouse’s need for financial help.
The spouse responsible for paying maintenance may take a tax deduction and
the recipient of the maintenance must report the maintenance as taxable
income. Maintenance may be agreed upon by the parties or if not agree
upon, the Judge may decide to award maintenance to one of the parties. The
court looks at factors such as the length of the marriage, the standard of living enjoyed during the marriage, the relative
income of the parties, and their respective needs, and the emotional and
physical health of the parties.
MARITAL PROPERTY:
Generally all of the parties’ property, including assets such as pension
plans, is subject to division. The court has broad power to divide marital
property equitably or fairly. (This may not necessarily mean an absolute
50/50 split as long as it is equitable). “Non-marital property” is real
estate, money, furniture, or other belongings that belong to you or your
spouse prior to the marriage, and also includes property received as gifts
or inheritance during the marriage. But even this may be divided under
certain circumstances. If the parties cannot agree to property
distribution, the court may divide the property considering a number of
factors, including child custody, earning ability, length of marriage, and
the physical and emotional health of the parties. Similarly, the debts of the parties
will be apportioned in an equitable and fair manner by the court if the
parties cannot agree. If you are facing a dissolution of your marriage and
need legal representation, contact the attorneys at Eskens, Gibson & Behm Law Firm, Chtd. at 507-345-5500.
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Eskens, Gibson & Behm Law Firm, Chtd.
115 E. Hickory St. - Suite 200
P.O. Box 1056
Mankato, MN 56002-1056
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