In case you haven’t heard, the court system (like everything else) is broke.   Starting July 1, 2009, Minnesota court filing fees will be increases.  The new family court filing fees for most of the state (Hennepin County tends to run higher by $2) will be:

• $400 Divorce Filing Fee (previously $330) – In most cases each party will pay the filing fee (This can be avoided IF the parties have reached a complete agreement prior to entering the court system.  But be prepared to pay if you are fighting).  The good news is, once you have paid the case filing fee, you won’t have to pay it again.

•  $100 Filing Fee for all Motions and Responses (previously $55) – If you need to ask the court for temporary relief during a divorce proceeding, or wish to bring a motion post-divorce to enforce provisions, modify child support, etc, you will be paying a $100 to the Court.  If the other side brings a motion you disagree with, you will be paying $100 to contest it.  And, if you did not pay an initial case filing fee before, be prepared to pay it now.

So, if you have been thinking of modifying child support or filing for divorce, act now and save a few dollars.  Every little bit helps.

One of the most important things in preparing your estate plan is naming the appropriate person to act as your Personal Representative (or Executor).  Some people feel there is a “right” person to name, by virtue of relationship, birth order, or proximity – these reasons can lead to disastrous results if the wrong person is selected.

A complete estate plan can require several different appointments – personal representative (executor), attorney-in-fact, trustee, health care agent.  These positions are very important and can be complex.  A Personal Representative (or Executor) is appointed in a will to handle the closing the estate.  Tasks include collecting and inventorying property of the estate, maintaining an estate checkbook to pay final bills, filing probate forms and handling the probate process, preparing final tax returns, and distributing the property in accordance to the will.  An attorney-in-fact is an agent named in a Power of Attorney (POA), this person can act on your behalf as provided in the POA, handling financial or other matters while you are still alive.  A trustee is the person in charge of handling the financial matters of a trust – paying valid bills, making distributions, investing where appropriate, completing required forms.  A health care agent is the person named in a Health Care Directive (also known as a medical power of attorney or living will).  The health care agent has the power to make all medical decisions for you should you not be able to speak for yourself.  These positions are more than honorary titles, they require hard-work and the ability to handle the tasks involved.

For your estate plan to work smoothly, you must appoint people who are right for the job.  Look for someone with the following characteristics:

• Willing to accept the position -do not surprise someone with the appointment, he/she does not have to accept the job, so your estate will run smoother if you select a person willing to take on the task.
• Responsible & Trustworthy – the person you name should be someone you would trust your life and your money to (because that’s what you are doing).  To prevent family harmony, and avoid future disputes, this person should also be trusted by other family members.
• Organized – A Personal Representative or Trustee is in charge of a lot of paperwork and financial tracking.  The job will be much easier if he/she is a naturally organized person who keeps meticulous records for his/her own finances.
• Focused – some of these positions could last for years.  Some tasks will require hardwork and a lot of follow up.  Make sure you name someone who will remain focused and get the job done.
• Capable of handling the task – Some people just would not be up for the job, sometimes the emotions of the situation may prevent a person from getting the job done.  If your daughter is an emotional person anyways, she just may not feel up to the task of handling her parents’ estate.
• Able to make a decision  – To some people, making a decision is difficult, if not impossible.  These people may be paralyzed by the burden of making certain decisions.  Do not name your son as your Health Care Agent if he will be unable to make the decisions you would want (such as when to remove life support) when that time comes.
• Willing to seek and accept help – sometimes the position of Personal Representative or Trustee can be overwhelming.  You do not want to burden your loved ones.  Your nominated person should be willing to seek professional help from a lawyer or financial adviser, or accept offers of help from family, should the task get complicated.

While your divorce is pending, it may be important to consider the impact your divorce may have on your estate planning documents.  If you wouldn’t want your soon-to-be-ex making medical decisions for you, now is the time to update your Health Care Directive.  When the divorce is commenced, the restraining provisions in the Summons prevent parties from changing insurance beneficiaries – now is not the time to be changing life insurance, medical insurance, or car insurance.  But all of this stuff will need to be taken care of once the divorce is finalized.  When the divorce is final, it is time to update your will and review your beneficiary designations.  Be sure to talk to your attorney about your estate planning needs.

Stories on joint physical custody arrangements seem to be everywhere lately.  Many states and countries are moving towards some sort of presumption towards joint physical custody.  Joint schedules can work great for parents dedicated to working together for their children.  But in families where the parents are working against each other instead of with each other, joint custody may do more harm than good.  Here are just a few quotes from a couple recent articles.

From the Newsweek article Not Your Dad’s Divorce:

“To make it work, we’d have to live near each other for the next 13 years, until the youngest girl was off to college. It was a commitment not unlike marriage, and, given that feelings were still raw post-divorce, neither of us thought it would be easy.”

“Forcing uncooperative couples into a joint arrangement could end up creating more parental conflict, which most experts agree is the most damaging part of a divorce for kids.”

“The willingness of both parents to cooperate is the key factor in how kids adjust to a divorce. Nickelson reminds parents that they should start creating a collaborative relationship with an ex-spouse early on. “You’re not going to sign the child-custody agreement, whatever it is, and be done with your wife or husband. I tell my clients, if you’re lucky, you’ll be sitting next to them for graduations and marriages and all kinds of achievements, so learn to get along.”"

From Matthew Fynes-Clinton’s article: Children Suffer When Law Splits Parenting Equally:

“My initial thought was, ‘They’ll realise (50-50 parenting orders) are a mistake in about 10 years time – and that they’ve screwed up a generation,”

“He says, ‘(My ex-wife) keeps saying to me our daughter can have one life in your household and another life in my household’. The child’s got this sort of split personality thing happening.”

“It’s about him and me. And it’s about control,” she says, concerned about the potential of such power plays to turn their daughter into a pawn.

She says the fundamental paradox with laws encouraging mutual parenting responsibility is the contrariness of the couples who seek judicial determination of their child custody wrestle.  “The legislation is written about parents who can do (equal time parenting),” she says, “and it’s applied to parents who can’t.”

McIntosh says substantial or equal-shared care can succeed where “self-selected” by mature, child-focused couples.  “But you need two sets of everything, co-operation, geographic proximity, family friendly work practices and people to be financially comfortable. On top of that, you need the emotional equipment for it.

Divorce is a time where many things change, and many issues must be addressed.  Divorce is also the time where many people must face the financial problems that have been ignored for years.  It is really important to check, understand, and protect your credit.  Check out Ask The Advisor’s article: How Will Divorce Affect My Credit? for some helpful information.

I have already posted about the man who wanted compensation for his kidney and the Second Life divorce, but check out Cezary Jan Strusiewicz’s article on Cracked.com for 10 strange, but true divorce stories.

As a divorce lawyer, one of the questions I frequently get is “How do I tell my spouse I want a divorce?”  My answer is always “It depends.”  I don’t know your spouse, I don’t know how he or she is likely to react.  But I do know 5 ways to tell your spouse that generally do not go over well:

1. Have your children tell your spouse the marriage is over.
2. Let your new boyfriend/girlfriend tell your spouse the divorce is pending and you are moving in with him/her.
   
3. End your relationship on Facebook.  Blog about your desire for a divorce.  Tweet about your new match.com profile.
   
4. Make the announcement at a family reunion or company picnic.
5. Say nothing, move out in the middle of the day, and have your spouse served with divorce papers that night.     

This is a common question for people going through a divorce, however, there is no easy answer.  Spousal maintenance (also known as alimony) is the award of payments from one spouse for the support of the other.  Unlike child support, there are no statutory guidelines.

When initially determining spousal maintenance, the courts will look at one spouse’s need for support and the other party’s ability to provide support.  The courts will also consider the parties’ standard of living during the marriage, the length of marriage, and the parties’ age, health, and work experience.  A court will also consider the proposed division of property (sometimes a case will settle with a “spousal maintenance buy-out” – a spouse will receive a larger share of the property instead of spousal maintenance payments)  There are so many variables in spousal maintenance, it can be very hard to predict the ultimate outcome.  The longer the marriage, or the greater the disparity in incomes, the more likely spousal maintenance will be ordered.

The issue of spousal maintenance must be addressed in all divorces.  If there will be no spousal maintenance at the time of divorce, the parties can either waive or reserve spousal maintenance.  By waiving spousal maintenance, the parties give up the right to have the court consider spousal maintenance and never again can the parties come back and ask for it.  When reserving spousal maintenance, the parties are telling the court “there will be no spousal maintenance right, but in the future we can come back and ask the court to award it.” There may be some sort of condition in the reservation (“if X happens, party can ask for spousal maintenance.)

If spousal maintenance payments will be made at the time of divorce, the parties (or if there is a trial, the court) must decide whether spousal maintenance should be temporary or permanent.  Temporary spousal maintenance (also considered “rehabilitative” spousal maintenance) is spousal maintenance for a specified time frame.  Permanent spousal maintenance is not permanent in an “always and forever” sense, instead it is spousal maintenance for an indefinite period of time, as the parties may bring a motion for modification in the future.  If there is uncertainty on whether the court should order permanent or temporary spousal maintenance, the court will order permanent spousal maintenance.

The term “estate planning” has a tendency to send many people in a panic -too complex, full of legal lingo and complicated tax concepts.  In his article Estate Planning Without Anxiety Peter Keating with SmartMoney Magazine does a good job of explaining the basic concepts.  There are four simple steps you should be aware of when working on your estate plan:

1. Know what you have and decide what you want to do with it.  This is the very first step in any estate plan.  Take inventory, and be sure to include your personal property, retirement accounts, life insurance policies, etc.
2. Understand the tax consequences.  Tax laws are always changing and it is important to understand how taxes may impact your estate plan.
3. Choose the correct vehicle to accomplish your goals.  While a simple will may work well for those with limited assets or those who desire a simple distribution, people with more complex estates would benefit from some sort of trust.  Mr. Keating does a good job explaining the most common trusts used in estate plans.

One of the most difficult things in any paternity or divorce case is figuring out the schedule for your children – this comes into play when talking about both physical custody and parenting time.

In Minnesota, physical custody is the routine, daily care of the children.  Parties can have joint physical custody, or one party can have sole physical custody.  Joint physical custody does not mean 50/50 – in fact some parties may use the term “joint,” although the children spend almost all of their time with one parent.  Parenting time (formerly known as visitation) is the time that each party spends with the children.  When figuring out child custody and parenting time issues, here are some things for you to consider:    

1. Forget about what you want – focus on your children’s best interests.  Too often times I hear phrases such as “I want full custody” and “he doesn’t deserve 50/50.”  The court doesn’t care what you want or what he “deserves.”  The court cares about the best interests of the children.  Let’s keep the discussion focused on the kids.
2. Take money out of it.  The bias that I have, and the bias that judges, custody evaluators, and other professionals have, is that people stuck on “50/50″ time are trying to significantly reduce their child support obligations.  Minnesota’s child support guidelines use a different calculation when the children are with each parent nearly 50% of the time.  You can still have significant time with the children without having 50% of the time.  Some parties get stuck on this issue because they are tied up on the finances.  Focus on the children and figuring out a schedule that works for everyone first, and then talk about the money.
3. Understand that there is not a “one size fits all” arrangement.  When I have a client come to me and say “we just want the normal schedule” or “we want the 50/50 schedule,” I have to ask, “what does that mean to you?”  Your family is different, your family’s schedule should be tailored to your family’s needs.   
4. Keep in mind your child’s developmental needs.  Consider a multi-step plan.  Children need different things at different stages in their lives.  A teenager can spend longer periods of time away from one parent than an infant can.  The Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement’s publication A Parental Guide to Making Child-Focused Parenting Time Decisions goes through the different stages of child development and makes parenting time suggestions.  This is not the law, and all children may be different, but it is a good starting point.  If you have very young children, consider designing a parenting time plan with multiple steps (i.e. until Susie’s first birthday, from age 1 until age 3, from age 3 until age 5, upon starting school…).      
5. Maintain as much stability as possible. The break-up of a family is a very difficult and stressful time for all involved, especially for the children stuck in the middle.  Do what you can to maintain stability in your child’s life.  How has the family operated while the parents were together?  Where were the children going to school and daycare?  What activities were the children involved with?  Work on creating a predictable schedule that your children can easily adjust too.
6. Consider the practical realities of the situation.  Something that looks great on paper just may not work for your family in real life.  If Dad has to work every third weekend, an alternating weekend schedule may cause problems.  If one parent is living in Monticello, and the other parent is living in Hastings, mid-week visits might not work.  If there is truly going to be a joint schedule, both parents must be committed to staying in the same general vicinity – preferably in the same school district.
7. Take into account work schedules and school activities.  If Mom works every Wednesday night, it generally makes sense for the children to be with Dad instead of with a babysitter every week.  If Dad works every Friday night, it makes sense for a weekend to start Saturday morning instead of Friday afternoon.  If the kids are in soccer every Tuesday and Thursday night, figure out the easiest way to handle those nights.     
8. Remember holidays and vacations too.  A proper parenting time schedule will include not only the regular weekly schedule, but also holidays and vacations.  Do not put in your document “the parties shall alternate every other legal holiday.”  You probably don’t care where the children spend Flag Day.  If your extended family always has a family celebration on the first Saturday of November – then include “Jones Family Celebration (first Saturday of November) in your holiday schedule.  Also consider how much vacation time your family needs and what type of notice to the other parent is required.  Most of the time, each party is given 2-3 weeks for vacation.  But if your extended family is in Europe, and every summer you spend 3 weeks with them, and you might want to have another week or two to take the kids to Disneyland, you’ll want to have more vacation time.  
   
9. Be as specific as possible – but be flexible.  Court orders that award a parent “reasonable and liberal parenting time” are just waiting to cause a fight.  What exactly does reasonable and liberal mean?  To one parent it may mean every other weekend, to the other it may mean 2 weeks at a time.  And to the police officer called to enforce it, it means “a civil matter I don’t want to deal with, go back to court.”  Your parenting time arrangements should be as detailed as possible.  But at the same time, it is important for both parents to be flexible.  Life happens, things come up, and sometimes we all just need to roll with it.
10. Learn to communicate and decide how to resolve disputes.  The divorce or custody case may be over tomorrow – but the two of you will be co-parents for the rest of your lives.  How will you communicate about the important events in your child’s life?  Are you able to call each other on the phone or send an e-mail to share information?  Do you need to use a parenting notebook?  Should you maintain some sort of calendar to keep track of the kids’ activities?  What happens when there is a disagreement over parenting issues or schedules?  Especially when you have young children, there will be many opportunities in the future for disputes to arise.  Decide how you will handle these disputes if you are unable to reach a mutual agreement.  Will you go to mediation or a parenting time expediter or a parenting consultant?  How will this professional be selected?