Deductibility of Attorney Fees? Time to call your CPA?

Here are several interesting facts regarding the ability to offset or recoup divorce legal fees. This firm doesn't advise clients on tax issues but nonetheless we are glad to give our clients the foothold of knowledge necessary for them to ask their accountants about these prospective tax savings:

  1. Legal fees for divorce actions are not deductible expenses in their entirety.
  2. Under the U. S. Internal Revenue Code § 212(1), legal fees incurred in attempting to secure income, which are miscellaneous itemized deductions, are deductible to extent that miscellaneous itemized deductions in aggregate exceed two percent of adjusted gross income.
  3. Under I.R.C. §212(3), legal fees for tax advice, which are miscellaneous itemized deductions, are deductible to extent that miscellaneous itemized deductions in aggregate exceed two percent of adjusted gross income.
  4. A portion of legal fees incurred in connection with property acquisition may be allocated to capital basis of property.
  5. Under Taxpayer Relief Act of 1997, if business entity pays attorney fees on behalf of individual, that entity must file an information return with IRS.

2016 Improvements for Orders For Protection: Faster Enforcement, More Information, & Less Uncertainty

The Minnesota Judicial Branch has completed statewide implementation of an initiative designed to improve the safety of domestic violence victims and enhance enforcement of protective orders. Through this project, Minnesota’s court system has overhauled the way it manages and shares data related to Orders for Protection. Orders for Protection – or OFPs – are civil orders issued by judicial officers to help keep domestic violence victims safe from their abusers.

Prior to the completion of this project, Minnesota’s district courts stored data relating to OFPs in an aging database that was not integrated with the Judicial Branch’s broader Minnesota Court Information System (MNCIS). This lack of integration limited both the frequency with which local district courts could share data related to protective orders with the Minnesota Bureau of Criminal Apprehension (BCA), as well as the amount of detail about protective orders that ended up in the hands of local law enforcement charged with enforcing the orders.

The Minnesota Judicial Branch has now fully integrated OFP data into MNCIS. This integration has not only streamlined court operations but, much more importantly, will serve to enhance the enforcement of protective orders, thereby increasing the safety of domestic violence victims and law enforcement. Benefits of this integration include:

Faster enforcement of Orders for Protection: Through this integration, as soon as a new OFP is entered into MNCIS or an OFP is updated by the court, that data is shared instantly with both the BCA and the FBI. That information then becomes available to law enforcement officers responsible for serving the OFP on the respondent and enforcing the conditions of the Order. Prior to this integration, OFP data was only transmitted from the courts to law enforcement twice per day.

More information in the hands of law enforcement: Due to the limitations presented by the prior database used to store OFP information, the data that was eventually transmitted to law enforcement only displayed a two-digit code representing condition language ordered by a judicial officer, rather than the full text of the conditions ordered by the court. Today, law enforcement officers can now access the full language of judicial officers’ conditions in OFPs from squad car computers, eliminating the potential for confusion and uncertainty about how to enforce the Orders.

Less uncertainty for those seeking protection:  Law enforcement is now able to instantly report that an OFP has been served on the respondent. Those seeking protection through an OFP have the option to receive an automated e-mail message from the court notifying them that the respondent has been served with the OFP.

“Throughout our judicial system, we are leveraging new technologies to enhance our efficiency and improve our service to the public,” said Minnesota State Court Administrator Jeff Shorba. “By improving how we manage and share data with law enforcement, this new initiative is strengthening the enforcement of protection orders, and aiding law enforcement as they work to keep domestic violence victims safe from their abusers. We are grateful for our partnership with state and local law enforcement during this project, along with the support we’ve received from many community organizations across the state.”

The statewide integration of OFP data into MNCIS began as a pilot in Ramsey County District Court in February 2015. The Minnesota Judicial Branch then implemented this integration in Minnesota’s other 86 district courts over the past year, concluding with Chisago and Isanti county district courts on January 15, 2016.

“Protective orders can be an effective and valuable tool for victims of domestic violence, but they are only as good as their enforcement,” said Safia Khan, Program Manager at the Minnesota Coalition for Battered Women. “Often a violation of an Order for Protection is the first time a victim is reporting her abuse to the criminal justice system – a timely and appropriate response from the system can not only reduce future abuse, but also build the victim’s trust. The new OFP database has many benefits, including more efficient and timely information-sharing with law enforcement, which we hope will result in increased safety for any victim of domestic violence in Minnesota who seeks an Order for Protection.”

The project was funded through a federal grant from the Office on Violence Against Women to the Minnesota Department of Public Safety, Office of Justice Programs. Project partners included the State Court Administrator’s Office, the Minnesota Bureau of Criminal Apprehension (BCA), the Minnesota Chiefs of Police Association, the Minnesota Sheriffs’ Association, the Minnesota Coalition for Battered Women, and the Minnesota Indian Affairs Council.

“This project arms Minnesota law enforcement officers with easy access to critical, real-time information that will improve system efficiency and improve victim and community safety," said Maplewood Police Chief Paul Schnell.

“This is about improving law enforcement’s ability to keep protected parties safe,” said BCA Superintendent Drew Evans. “The BCA created an electronic path for OFP information to get from the courts’ new system to law enforcement – giving law enforcement the information they need to protect people faster than ever before.”

Gray Divorce - the rising statistic

The overall divorce rate across the country has gone down over the past several of decades; this was primarily due to fewer couples getting married as opposed to a reduced frequency of divorce.

There is however one demographic of married persons who are legally ending their marriages more than ever before: married people 50 years of age and older. 

Referred to as “gray divorce,” many of these divorces happen after children leave the home and the ties that held a marriage together are seen in a new light. Some believe this increasing trend is attributable to the economy: more couples may be emerging from the thaw of the Great Recession and decide that they can afford to untie the knot.

Gray divorces are not easy. Even without the issues of custody, parenting time, and child support, a gray divorce can be complicated.  There are a lot more assets to divide, a lot more history, and a lot more intermingling with everything. Spousal support is likely a concern as many of these couples have been married for more than ten years. Adult children take sides and influence their parents and discussions. And divorcees in their sixties have to dovetail the divorce negotiation with retirement planning.

Click here for more information on these issues.


Q & A: Increase in Child Support

Q & A: A client agreed in a divorce decree that she would not ever ask for a child support adjustment. The decree says that ‘if she does, any increase will be returned to the husband as an additional property settlement.’ The client now wishes to as for an increase in child support. Is there any authority for voiding such a clause or being granted a modification despite this clause in the decree?

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How soon can I hold my Ex in Contempt of Court?

To file a contempt action the following steps are needed:

  • Draft the Motion, the Affidavit, Order to Show Cause (OTSC), and a proposed Order along with compiling/attaching any attachments
  • Secure a hearing date before the District Court Judge
  • File all of the documents
  • Wait for the judge to sign the OTSC
  • Collect the OTSC from Court Administration and have it served on other party by Deputy Sheriff or private process server
  • Wait for the hearing
  • Attend the hearing.

As you can see in the above chronology, the hearing date to have the matter heard by the judge is many weeks from when the contempt action is started. It needs to be far enough out in time to account for the court’s time to sign the OTSC, the time to serve OTSC at least 14 days before the hearing.


1. What is third-party custody?

Third-party custody is when someone other than a child's parent has court-ordered legal and physical custody of a child. A custodian is the person responsible for the care, control, and maintenance of a child. In Minnesota, a child born to a single mother is presumed to be in the legal custody of her mother. No court order is necessary. Similarly, married couples have custody of a child born to them without needing a court order. An unmarried father’s paternity must be established before he has the legal right to seek legal and physical custody of a child.

2. When and why should a caregiver seek custody?

Third parties usually seek legal custody of a child when they need legal authority to obtain medical care, enroll the child in school, or provide the child with a safe, stable, and permanent home. People who have cared for a child in their home for a long period of time usually seek custody in order to have clear, enforceable guidelines regarding arrangements such as where the child is going to live and what sort of visitation the parents may have. They may want to ensure that the parent(s) cannot take the child from their care on a whim, thus disrupting school, other activities, and the child's sense of stability.

Third parties also seek custody when they believe that a child’s physical or emotional health is at risk if he or she has to live or remain living with a parent. For instance, if a single mother of a child dies, and the father has had little or no contact with the child (or has a history of abusive behavior, extensive drug and/or alcohol use, etc.), the relatives who have a relationship with the child may believe that the child will be harmed emotionally if she has to leave them to reside with a virtual stranger. The relatives may then take steps to become third party custodians.

A third party can also obtain custody of a child in a CHIPS proceeding when the Juvenile Court has determined that a child cannot return home and a permanent home for the child is necessary.

3. What law governs third party custody proceedings?

The De Facto Custodian and Interested Third Party law, MINN. STAT. 257C, governs all third party actions for custody and visitation of children in family court. It is a new law that went into effect on August 1, 2002. This law establishes clear requirements for third party custody court proceedings, defines de facto custodians and interested third parties, and sets forth specific burdens of proof and best interest analysis factors to be used at trial. It consolidates prior statutes governing third party actions into one chapter, and reconciles the two doctrines which have framed the discussion concerning custody disputes between a parent and a third party in Minnesota for years. Those doctrines are first, that a parent is entitled to custody of his or her child unless that parent “is unfit or has abandoned [his or her] right to custody or unless there are some extraordinary circumstances which would require [the parent] be deprived of custody,” and second, that “the so-called best-interest of the child concept, according to which the welfare and interest of the child is the primary test, is to be applied in awarding custody.”7

4. How is the court process started?

In order to get an order of custody, a petition for custody must be filed in the family court in the county in which the child resides or where there has been an earlier order of custody entered. The petition must state:

•      The name and address of the person seeking custody (petitioner), the parents, and the children for whom custody is sought;

•      The relationship of the petitioner to the child;

•      Whether the petitioner is a de facto custodian or an interested third party;

•      The current legal custodian of the child;

•      All previous orders of custody and whether or not other actions for custody are pending;

•      Whether or not the parents should pay child support or have visitation with the child; and

•      That it is in the child’s best interests to reside with the petitioner.

5. Who is a de facto custodian?

An individual is a de facto custodian if he or she can show by clear and convincing evidence that:

•      He or she has been the primary caregiver for a child;

•      During the two years immediately preceding the filing of a petition for custody, a child resided with an individual for 1) a total period of six months or more if the child is less than three years of age, or 2) a total period of one ear or more if the child is three years of age or older; and

•      The parent has refused or neglected to comply with the duties imposed upon the parent by the parent-child relationship, including but not limited to providing the child with necessary food, clothing, shelter, health care, and education, and by creating a nurturing and consistent relationship and exerting other care and control necessary for the child’s physical, mental or emotional health and development. An individual is entitled to a hearing to prove he or she is a de facto custodian.

6. Who is an interested third party?

An individual is an interested third party if he or she can show by clear and convincing evidence that one of the following factors exists:

•      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;

•      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 that

•      Other extraordinary circumstances exist.

An individual is entitled to a hearing to prove that he or she is an Interested Third Party.

7. In third-party custody cases, how does the court determine what is in the best interests of the child?

The court will look at various factors as required by MINN. STAT. § 257C.04. The court can give no preference to a parent over a de facto custodian or an interested third party simply because they are a parent. This law puts long-term caregivers on equal footing with the parents in custody disputes. To determine the best interest of the child, the court will evaluate the following factors, the:

•              Wishes of the parties as to custody;

•              Reasonable preference of the child, if the court considers the child to be of sufficient age

•              to express preference;

•              Identity of the child's primary caretaker;

•              Intimacy of the relationship between each party and the child;

•              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;

•              Child's adjustment to home, school, and community;

•              Length of time the child has lived in a stable, satisfactory environment and the desirability

•              of maintaining continuity;

•              Permanence, as a family unit, of the existing or proposed custodial home;

•              Mental and physical health of all individuals involved; except that a disability, as defined in MINN. STAT. § 363.01, Subd. 13, of a proposed custodian or the child must not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;

•              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;

•              Child's cultural background; and

•              Effect on the child of the actions of an abuser, related to domestic abuse, as defined in section MINN. STAT. § 518B.01, Subd. 2, that has occurred between the parents or the parties.

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.

8. What happens after the petition is filed with the court?

The petition, along with a summons, must be personally served upon the child's parents, guardian or legal custodian. If the relative does not know the location of the child's parents, the court may allow the grandparent to give notice by publication in a newspaper.

Once they are served with the summons and petition, the parents have 20 days to file an Answer, a formal written response filed with the court. The parents can either ignore the case, support the grandparent's custody petition, or fight the petition and file an Answer.

9. What happens if the parents do not file an Answer?

If the parents choose to ignore the caregiver's petition, a default judgment will probably be issued. A default judgment is a judgment that is issued against someone who does not appear in court. The effect of a default judgment in a custody matter is usually the awarding of custody to the person who files the petition if the court finds that is in the child’s best interests. Even though the other party is in default, the caregiver will have to go to court to provide evidence that the child should be placed in his or her custody.

10. What happens if the parents want to fight the petition?

In a case where the parents contest the petitioner's custody petition, several hearings may be held to determine if the petitioner is a de facto custodian or an interested third party and whether or not it is in the child's best interests to be with the petitioner. Every county has its own process for determining custody matters. At the first hearing, the court will probably decide issues such as temporary custody during the pendency of the court case, the type of visitation the child will have with the party who does not have custody, temporary child support, etc. The court will usually order the petitioner's home and the parents' home to be evaluated. If, after the evaluation is received by the parties and the court, the parties still cannot reach agreement as to custody, a trial will be held. The court will take the recommendation of the evaluator into consideration when making its decision.

After a final hearing, the court will issue an order stating who is to be granted legal custody of the child (legal custody may be sole or joint) and who is to be granted physical custody of the child. The court's order will also address the issues of visitation and child support.

11. What if the parents want to give custody to a relative or another third party?

Parents and third parties, relatives and non-relatives alike, can agree to a custody order if the parents agree that it is in the best interests of the child to be in the care of a de facto custodian or interested third party. If the child's parents support the caregiver's custody petition, no final hearing is necessary.

Further, a parent may transfer legal and physical custody of a child to a third party by a custody consent decree. The custody consent decree must state that the custodian has the ability to determine the child's residence; make decisions regarding the child's education, religious training, and health care; and obtain information and public services on behalf of the child in the same manner as a parent. The consent decree must indicate whether it is temporary or permanent and provide for child support and visitation. The court will approve the custody arrangement if it is in the best interests of the child. This option gives the parties the most flexibility to tailor the custody order to their circumstances.

12. What can a relative caregiver do in an emergency situation?

Often, parents are quite content to allow caregivers to care for their children, as long as the caregiver takes no legal action. This changes, however, once they are served with the summons and petition for custody. Parents may get angry and come to take the child away. Without a temporary order, the caregiver is unable to keep the children from going with the parents. Therefore, it is wise to obtain an emergency temporary order of custody at the same time the petition for custody is filed, if there is any fear that the parents may come to get the child.

The courts have an emergency procedure that allows parties to get emergency orders quickly, so that the child remains where the child has been, or in a safe place, until the story can be sorted out by the court.

13. What about mediation?

Parties in third party custody cases should always consider mediation as a means to solve the custody dispute. A mediator is professionally trained and does not take sides in a case. The mediator will assist the parties to come together and craft a solution that works for everyone. It is a difficult process, but it usually is in a child’s best interests if the people in the child’s life can work together to create a safe and stable home for the child.

14. How long does third-party custody last?

For all intents and purposes, an order of custody is permanent. Parties can ask the court to modify the custody order after it has been in effect for a year. Getting the court to change custody is not an easy task.

A custody order can be changed if all of the parties agree to the change. If the parties do not agree, the court can change the custody order only if it finds that (1) a change has occurred in the circumstances of the child or the parties, and that (2) the modification is necessary to serve the child's best interests. Generally, if a grandparent has custody of a child the court will not change custody of the child unless the grandparent agrees to the modification, the child is back with

his/her parent(s) with the grandparent's consent, or the court finds that living with the grandparent is harmful to the child.

However, child support and visitation orders can be more easily changed. Either the grandparent or the child's parent(s) may seek modification of child support provisions in a number of circumstances including: (1) a change in the grandparent's financial situation, (2) a change in the parents' financial situation, or (3) a change in the child's need or age. The visitation provisions can be changed if modification would be in the child's best interests. In both cases, the person wanting the change must go to court unless the other party agrees to the change.

15. Is a third-party custodian eligible to receive any public assistance for the child?

Yes. A child living in the legal and physical custody of someone other than his or her parents is considered a dependent child and is eligible for MFIP-Child Only benefits. If the caregiver got the order of custody from juvenile court, the child may be eligible for Relative Custody Assistance, which also includes Medical Assistance. Once a caregiver obtains custody, the caregiver cannot be that child’s foster parent.

16. How is third-party custody different from guardianship or adoption?

A parent’s parental rights to a child are not terminated if the child is placed in a third party’s custody. The court will require the parents to contribute to the financial support of the child and allow visitation. If the caregiver gets custody, the child will still be the parents' child for purposes of inheritance and social security.

If the child is adopted, the parents’ rights have been terminated, and the caregivers become the legal parents of the child. Adoption is covered in the next session.

Custody differs from legal guardianship because in order to get a legal guardianship, the parental rights of both parents or the only living parent must be terminated or both parents must be deceased.