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Mar 26 2016

Minnesota Family Law QA (Part 1)

Q & A: What is the Minnesota Father’s Adoption Registry?

The Fathers’ Adoption Registry is a record of “putative” fathers who voluntarily register any time before their child’s birth or within 30 days of the birth. It applies to children born on January 1, 1998 or later, but not before then.

A “putative father” means a man who may be a child’s father, but who

  • is not married to the child’s mother on or before the date that the child was or is to be born and
  • has not established paternity of the child in a court proceeding.

If adoption proceedings begin for the child, and if the father has placed his name on the registry, the court can find the father so he can participate in the adoption proceedings.

For more information about the adoption registry go to the Minnesota Department of Health’s website here.

Click here for more information on Child Custody.

Q & A: Increase in Child Support

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?

Generally, this type of clause should be void per public policy. Here, the key is whether there was any financial consideration for the agreement and how the agreement was phrased. Depending on whether the agreement was done correctly or done poorly, the client may or may not have a claim for increasing child support.

Minnesota Statute 518A.39 governs the modification of orders and decrees. Subdivision 2 outlines the terms for modification of a child support order. Paragraph (a) states that the terms of an order respecting maintenance or support can be modified upon a showing of one or more factors, any of which makes the terms unreasonable or unfair. Some of these factors include a substantially increased or decreased gross income of an obligor or oblige, substantially increased or decreased need of an obligor or oblige or children that are the subject of the proceedings, a change in cost of living for either party, and several other factors listed in the statute.

Paragraph (b) states that a substantial change in circumstances can be presumed under Paragraph (a) and the terms of the current support order shall be rebuttably presumed to be unreasonable and unfair if several circumstances arise. Some of these circumstances include the application of the child support guidelines in 518A.35 to the current circumstances of the parties resulting in a calculated order that is at least 20% and $75 higher or lower per month than the current support order, health coverage ordered under 518A.41 not being made available to the child for whom the order is established by the parent to provide, the existing support obligation being in the form of a statement of percentage and not a specific dollar amount, the gross income of an obligor or obligee decreasing by at least 20% through no fault or choice of either party, among other factors listed in the statute.

In practice, it would be worth pursuing the client’s claim for increased child support despite the phrase in the divorce decree if the obligee or obligor’s situation fits any of the circumstances outlined in Minnesota Statute 518A.39 that would allow for modification of the child support amount.

Click here for more information on Child Support.

Q & A: What is the process for starting a divorce in Minnesota?

Summons & Petition

The spouse who starts the divorce is called the petitioner. The other spouse is called the respondent. The petitioner and the respondent are the “parties” in the divorce.

A divorce officially starts when the petitioner requests that a Summons and Petition be delivered to the respondent. It must be delivered, in person, by the sheriff or some adult other than the petitioner. This is called Service. Sometimes the respondent cannot be “served” personally with the Summons and Petition because the petitioner does not know where he or she is and has no way to find out. In this case the petitioner can apply to the court for permission to “serve” another way—such as mailing the papers to an address where mail will likely be forwarded to the respondent or publishing a notice in a newspaper. This special service starts the legal proceedings in cases where the respondent cannot be personally served.

The Petition is a legal paper stating that the petitioner wants the court to divorce the parties and how the petitioner wants the court to decide the other questions raised in a divorce. The decisions the court will make are called Relief. The Petition also states the reasons for the divorce and for the other relief requested.

The Summons is a separate legal paper telling the respondent to answer the Petition within 30 days. If the respondent does not, he or she is in default and the divorce is uncontested. This means the petitioner (the spouse who wanted the divorce) may be granted the divorce and other relief requested.

The Summons also forbids both parties from selling or getting rid of any property or harassing one another. It requires each party to maintain any insurance for the family. If one spouse spends money belonging to both parties after receiving the Summons, he or she will have to explain to the court why the money was spent.

Answer & Counter-Petition

The respondent may disagree with the relief asked for by the petitioner and want the court to hear his or her side.

The respondent then must serve an Answer on the petitioner’s attorney within 30 days of the date the respondent was served.

An Answer is a legal paper saying what the respondent says back to the Petition. Just calling up the petitioner to say something like “I don’t like this” is not an Answer. The Answer may be mailed to the petitioner’s lawyer. It does not need to be personally served.

The Answer states whether the respondent thinks the petitioner’s statements in the petition are true or false. It also tells the court what the respondent wants.

An Answer may include a Counter-Petition, in which the respondent states what he or she wants the court to decide and why. Often a Counter-Petition is filed with the Answer so that the respondent can continue with the divorce if the petitioner later decides to withdraw the Petition.

Once an Answer is served, the case is contested and the proceeding can be finished only by a settlement or a trial.

Click here for more information on Divorce.

Q & A: Why should paternity be established?

Psychological Benefit: Most of the time, there are emotional benefits for a child by having contact with his or her father. A child may also develop family ties to grandparents, aunts, uncles, and other relatives.

Medical History: Your child may also gain access to medical history and genetic information that may be helpful in current or future medical treatment.

Inheritance: The child has legal rights as an heir to inherit from the father and the father’s relatives.

Government Benefits: If the father becomes or is disabled, the child may be able to get benefits from the Social Security Administration or Veteran’s Administration. The child can also get death benefits from Social Security or military benefits if the father was a veteran.

Decision Making About the Child: Unless certain actions are taken to establish the legal relationship, a father has no right to be involved in the child’s life, including the decision for the child to be adopted.

Click here for more information on Child Custody.

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