Minnesota Family Law: Can't We Just Agree?

As a Minnesota divorce attorney, a question that is often posed to me by my divorce and child custody clients is, “Can't my spouse (or the other party) and I just agree to something on our own?” Normally, my answer to that question is a resounding “yes” – the more you can agree to, the less there is to argue between the attorneys and the less Court involvement that will be necessary. What this normally also means is the divorce or custody proceeding will be easier on your pocket book as well.

However, there are a few exceptions to the “lets just agree to this and follow it” approach. First, if the agreement pertains to minor children in any manner, the Court will always apply an independent “best interests of the child” analysis. In other words, just because you agree to something, if that agreement impacts minor children, the Court could reject the agreement.

With regard to child support, there is a legal presumption that the statutory child support guidelines must be used in all child support determinations. If the parties wish to agree to a different amount, they must provide to the Court an explanation on why this “deviation from the guidelines” is in the children's best interests.

For an initial child custody determination, the standard for the Court would be “what is in the best interests of the children.” If the parties agree to the child custody and parenting time schedule and provide an explanation for it, generally the Court's will defer to this agreement. The Courts generally appreciate the parties reaching an agreement on custody and parenting time – because in most cases the parents know their children the best and know what is best for their children. So, if they can agree on custody and parenting time, the Court should adopt that agreement.

The tricky part arises when the parties wish to modify an existing Court order (a post-decree modification). For example, John and Jane got divorced. They had two minor children, Jenny and Jimmy. In the divorce, Jane was awarded sole physical custody, the parties were awarded joint legal custody, John was awarded parenting time every other weekend and was ordered to pay $1,000.00 per month in child support. One year after the divorce, John was terminated from his employment, began receiving unemployment and was home for the majority of the days. Based on this, the John and Jane agreed between the two of them that they would modify their agreement to provide for joint physical custody, each spouse alternating every other week of parenting time with the children and that neither spouse would pay to the other spouse any amounts for child support. John and Jane agreed to this in writing, each of them signed it, but they did not submit it to the Court for a Judge to sign and file with the Court.

John and Jane's agreement would be considered an “extra-judicial agreement.” Is it enforceable? Maybe.

Minnesota courts have approved extrajudicial modification of an existing divorce decree through stipulated agreement. There is a policy favoring the use of stipulations in divorce proceedings. But these stipulations are given considerably less weight when the agreement involves children. The Court is not bound by stipulations involving child custody. Further, child-support stipulations are given less weight to protect "the welfare of the children” as the paramount consideration.

The enforceability of an extrajudicial agreement depends on whether the agreement is both contractually sound and otherwise fair and reasonable. To be contractually sound, the extrajudicial agreement must be supported by consideration. Consideration is "`a benefit accruing to a party or a detriment suffered by another party.'"  The amount of consideration is not relevant to a determination of an agreement's enforceability. When parties make mutual, concurrent promises that are incorporated into a bilateral contract, such promises are sufficient consideration for each other.

Also, to be enforceable, an extrajudicial agreement must not be unfair or unreasonable to (1) the children by causing an adverse impact on them; (2) one of the parties as a result of overreaching, a lack of disclosure, or lack of opportunity to consult with counsel; (3) the state by causing one or both parties to seek public assistance; and (4) the district court by unnecessarily complicating future court proceedings.  In determining the enforceability of an extrajudicial agreement, the district court may accept or reject the terms of the agreement in whole or in part.

So, the “long and short of it” is, just because you agreed to it, doesn't mean that the Court will recognize your agreement. However, as I mentioned at the beginning of this article, it is always best if you and your ex-spouse or the parent of your child can agree on the terms of your custody, parenting time and child support. But, the lesson to be learned here is, if you do reach a “post decree” agreement, please incorporate that agreement into a stipulation and order to submit to the Court for a Judge to sign and file with the Court Administrator. By doing this, you convert a semi-enforceable “extra-judicial agreement” into an enforceable “Judicial Court Order.”

If you find yourself in this situation, please contact me, a Minnesota Divorce Attorney and Prior Lake divorce attorney.  I can assist you in converting your extrajudical agreement into an enforceable Court Order.

By: Adam Blahnik, a Minnesota Divorce Attorney, Prior Lake lawyer and managing attorney and owner of Blahnik Law Office, PLLC (952-479-0449) in Prior Lake, Minnesota.

Divorce in Minnesota: Should I Obtain a Divorce?

The title to this article is actually a question, that I, as a divorce attorney cannot answer for you. Having grown up in a Catholic family, my father stills comments to me (I believe in a facetious manner) about my "chosen profession" as a Minnesota divorce attorney and how divorce is more than frowned upon in such faith. Then of course the conversation inevitably leads to how I must cause acrimony in the relationships of married couples for job security (which is, of course facetious).

The actual decision to get a divorce from a spouse is a decision that should be made prior to contacting me as a Minnesota divorce attorney. Almost all of my clients who contact me regarding a divorce had made the decision to get a divorce months, if not years prior to actually mustering the courage to call a divorce attorney. However, I have had a few clients during their initial divorce consultation, "tear up" when they tell me that they want to divorce their spouse. In these few clients, I could tell in their eyes that they were not ready for the divorce, for whatever their reasons may be - still hoping that he or she can mend the differences with the spouse, going to first try marriage counseling, the minor children will be too adversely impacted, the financial strain will be too great, he or she does not know a life other than the life with that spouse, etc. Many of these are very legitimate reasons for delaying divorce, or to not get a divorce altogether.

The question of whether parents should stay together in an unhappy marriage for the sake of the minor children has been, and continues to be a topic of much debate. If the parents argue daily in the presence of the children and expose the children to a hostile living environment, then more harm may result to the children than good by remaining together. This could be the case on both an immediate level - by subjecting the children to a tumultuous environment, and on a long-term level - by teaching the children negative "life lessons" that will resonate with them as adults. However, if the parents do not argue, but have simply fallen out of love and are living two separate lives under the same roof while both looking out for what is best for the children - then is there harm to the children be staying married. In this situation, the parents must make an independent decision about their own happiness.

Whether someone should or should not get a divorce is a huge, and life changing decision to make. It is a decision that should not be made hastily and should be a decision made by that person alone - without the influence of peers, friends and other family. Friends and family can often times provide good objective insight into the relationship "from the outside looking in." However, every relationship is different and each person "should" know what is best for that person.

If you have not made the decision to actually get a divorce, but you would like to know what your legal rights would otherwise be in the case of a divorce (especially if you believe your spouse is contemplating a divorce), please contact me as a Minnesota divorce attorney and Prior Lake divorce attorney for a free divorce consultation. By calling and speaking with me, you, by no means, have to actually follow through with the divorce; you would simply be learning your legal rights that would potentially result from the divorce proceedings.

Minnesota Divorce & the Marital House: Should I Stay or Should I Go?

If you are obtaining a divorce in Minnesota and you own a house, there are several factors that come into play as to whether you should pursue possession and eventual ownership of the house, or whether you should relocate to a different residence. An obvious concern as to whether a divorcing spouse wishes to stay in the marital house, is whether or not there is equity in the home. The less obvious issue on whether to stay in the house or not as part of a divorce in Minnesota, involves the issue of child custody.

The Choice is in Your Hands

If there are minor children involved, as a divorce attorney, I will almost always advise my client to NOT leave the house – at least on a temporary basis. The reason for this is, if the Minnesota divorce is disputed/contested, and in particular if the issue of child custody is disputed, more than likely the Court will be requested (through a motion for temporary relief) to issue a Temporary Order granting temporary child custody to one of the parents. One of the main objectives that the Court considers in assessing “the best interests of the children” to determine which parent will receive temporary child custody, is to “maintain the stability of the children.” To maintain the stability of the children, the Court usually will want to keep the children in the house where the children resided during the parties' marriage. Thus, often times is the case, the parent who gets possession of the house pending the divorce, will also get temporary child custody (or at least the majority of parenting time) with the children. However, this is just a temporary order (a temporary fix) until a permanent solution regarding the house can be agreed to or decided. As a divorce attorney and lawyer in Prior Lake, Minnesota, and as a resident of Prior Lake, Minnesota, I have witnessed and been subject to the recession and the adverse impact that the recession has had on the housing market. The Prior Lake area and neighboring Savage, Shakopee, Burnsville, and all of Scott County, Dakota County and the Twin Cities metropolitan area in Minnesota as well as the vast majority of the country did not evade the declination of housing values. As a divorce attorney and as part of my divorce practice it is always an issue of “what to do with the marital house.” A few years ago, the notion of the value of one's home decreasing was inconceivable and the parties' house was almost always considered an “asset” for divorce purposes. However, now days, more times than not in my divorce cases in Minnesota, the house is a liability – and often times a substantial liability. So, the concern is whether to choose to stay in a house with an “upside down” mortgage. In many of my divorce cases, the parties simply elect to “let it go” and discontinue paying the mortgage. However, the divorcing couple cannot stipulate in a Court Order that they will no longer pay the mortgage payments – because the Court cannot sign an Order providing that the parties will violate the terms of their mortgage and promissory note. So, in these cases, it is usually “implied” that the payments will no longer be made. In such cases, as a Minnesota divorce attorney, I will advise the parties to agree that one spouse will receive possession of the house during this process and that they will each be liable for any costs and expenses associated the inevitable foreclosure process. In the few cases where there is still equity in the marital home, and where one of the spouses can afford the mortgage payments and other expenses associated with the house, it may be a wise decision (depending on house and location) to choose to stay in the house, since the housing market did decline substantially, it may rebound exponentially one of these days – hopefully that is not just wishful thinking on the part of the author . . .