On May 24th, Governor Dayton opted not to sign a child custody bill which would have given both parents a presumption of at least 35% parenting time. Dayton’s “pocket veto” has the bill’s supporters lamenting what they deem a great loss for fathers, and a setback in reaching their goal of equal parenting time for both parents.

While there are legitimate arguments for the importance of both parents in the upbringing of a child, this bill was not the solution. For one thing, fathers as a whole do not have it as hard as many of their advocates would have us believe. In fact, research by The Center For Parental Responsibility has shown that fathers receive at least 45% parenting time in almost half of all cases. Indeed the current statute’s 25% minimum is by no means holding most dads to that percentage. It is a floor, and if they show in court that it is in the child’s best interests to be with them more than that, they will likely get more time.

While sole custody to the mother may have been the assumption in the past, courts are increasingly gender-neutral and case-specific in their analyses of parents. The standing Minnesota Statutes section 518.17, outlines in detail the “best interest” factors, which are to be taken into account in every child custody case. Things such as who is the primary caregiver, the stability of each parent’s home, cultural issues, and the child’s ties with school/community/etc, are just a few of the many factors which are weighed in deciding custody and parenting time. The court makes no assumptions on who is a better parent, and thus a father who has been very involved in his children’s upbringing prior to the court action should be on equal footing with an involved mother.

In addition, court-decided parenting time is generally rare (less than 1% of cases), as settlement between the parties is encouraged. The arrangement will fare better if chosen by the parents themselves, and, to be blunt, the court prefers to not have to make such in depth findings on the interpersonal relations of a family. Thus, in the few situations where parents are so at odds with each other that mediation and other alternative dispute resolution cannot bring them to agreement, the court is left to weigh the factors and make a decision. This decision is made by a court looking very closely at the lives of those involved; not by Congress making sweeping declarations.

A few years ago, Minnesota revised its child support guidelines. Most lawyers agree that the changes are for the better, as time spent with the child is more properly taken into account. Yet, the new guidelines can be a bit confusing to the general public (and to non-math-loving lawyers as well), so it’s worthwhile to take a look at them.*

While the guidelines do calculate support based on time spent parenting the child, they do not use a straight up percentage to do so. Instead, a support-paying parent falls into one of three categories, according to the percentage of the time the child is with them: 0-9.9%, 10-45%, 45.1-50%. (A parent who spends more than 50% of time with the child does not pay support.)

The important thing to take away from this is that a very small difference in time spent with the child can make a significant difference in the amount of child support owed.

For example, if a parent spends 164 days of the year with the child, they have the child 44.9% of the time (and fall into the 10-45% category.) If they only spent one more day per year with the child, they would parent 45.2% of the time (and fall into the 45.1-50% category.)

In a situation where the parents make essentially the same income, a parent falling into the 45.1-50% category would pay little to no child support. Thus, that one day per year, can make a huge difference in that parent’s support liability.

If we run the numbers, for demonstrative purposes, of two parents each making $30,000 a year, with one joint child, that one day per year of parenting time makes a difference in over $300 a month in child support payments.We see the imperfection of the system, as one day hardly should cost near $4000. Yet, it is what it is, and no system is perfect. That’s why it’s important to be aware of the numbers and what they may mean for your life.

* The state does try to improve accessibility of the guidelines by taking care of the number crunching for you on their child support calculator website. Anyone can plug numbers into the Child Support Calculator to get estimates of what they (or the other parent) should be required to pay. So, while a lawyer is recommended to advise you and advocate on your behalf, you can at least get an idea of what you’re dealing with by visiting childsupportcalculator.dhs.state.mn.us

This final installment in our Alternative Dispute Resolution series will discuss ADR in child custody matters.

Child custody is often the most contested and emotional area of a divorce. It is also the area that most experts find the most important to do in a non-adversarial manner. Children can be traumatized by time-consuming and adversarial proceedings. As such, ADR, especially mediation, can greatly improve the impact a child custody dispute can have on a child.

Indeed, most experts in family law agree that the experience of the children is the most important to consider, and that whatever can be done to prevent instability and fighting in the life of the child should be done. Thus, ADR is important in child custody proceedings since it allows families to create a more stable home environment and to hopefully move towards a harmonious and collaborative parenting future.

If an SENE (as described in previous post) fails to bring settlement between the parties, mediation or a full custody evaluation may be necessary. Mediation is often the preferred alternative, as it offers the parties the opportunity to work together. But, if that does not work for these parties, they can look to a custody evaluation.

Custody evaluations tend to be time-consuming and therefore the more expensive option for the parties. They also tend to feel slightly more adversarial, because they involve a custody evaluator interviewing and observing both parents to ascertain what is likely in the best interests of the child. Once this evaluation is made, it is filed with the court. While the parties may also use this outcome to help in settlement negotiations, it is important to note that should they go to trial, the court has the evaluation, and it is usually given a great deal of deference by the judge to assist them in making a determination.

Post-decree, should issues arise in enforcing a parenting time agreement, the court may appoint a parenting time expeditor or parenting consultant. Parenting consultants are neutral professionals with experience with divorce and parenting issues. They will meet with the parties and attempt to mediate any parenting disputes. Should mediation not work, parenting consultants act in a mediator-arbitrator type role, and may make the final decision for the parties. If need be, parenting consultants can file binding decisions with the court. They can be utilized just once or continuously, as needed to end disputes between the parents. Yet, since they are paid hourly, parenting consultants are an expensive solution to every day disputes. Most parties use them only in alternative to going back to court.

But, when kids are involved, any alternative to a full-fledged trial is usually less traumatic for all involved, most especially the children.

This installment of our Alternative Dispute Resolution (ADR) series will discuss options conducted through the courts.

If the parties chose at the outset of a divorce to file the petition with the court, the court will begin setting hearing dates. This does not discount the use of ADR in the process, though. In fact, most Minnesota counties highly encourage ADR steps for every divorce proceeding, even when the petition is filed with the court.

In much of Minnesota, the first court appearance will be an Initial Case Management Conference (ICMC). In an ICMC, the parties appear before a judge and the judge talks through the options with them. They discuss what the main issues will be in this dissolution proceeding and how to go forward. The parties may agree to just negotiate (through their attorneys) on these issues, but commonly they leave the ICMC with plans for a financial, social, or both types of Early Neutral Evaluation (ENE).

Early Neutral Evaluations are unique to Minnesota. They started in Hennepin County and have spread to many locations throughout the state. These are done early in the divorce process and offer an evaluation to the parties which may allow them to proceed forward with better negotiations. There are two kinds of ENEs, Social (aka Custody and Parenting in Anoka County) and Financial. SENEs (and CPENEs) involve child custody and parenting time issues, while FENEs focus on the financial issues of the divorce.

ENEs involve telling and showing the issues to one or two neutral parties. (FENEs usually only have one neutral, while SENEs/CPENEs usually have two.) Neutrals are professionals, sometimes attorneys, sometimes mental health professionals, and they evaluate the case as they think a judge would. The neutrals then tell the parties how they think the case would go if brought to trial. The decisions of the neutrals are in no way binding and can be disregarded or taken to heart—the point is to give the parties an idea of how their case would likely end in court.

Now, the parties are in a better position to negotiate, knowing what the alternative outcome would likely be. This process has proven highly beneficial, and it is generally risk-free, as it is a confidential process, and there is no concern that the ENE outcome or proceedings could be brought up in court in any way. It is solely to be used for evaluative purposes for the parties involved, and it often gives them the information they need to proceed confidently with the negotiation process. Sometimes the case settles following an ENE, but if it does not, the parties (and their attorneys) meet again with the judge to discuss the next step. This next step may be mediation or another form of evaluation, such as a custody evaluation. (More on ADR in child custody proceedings will be covered in the next installment.)

This installment of our series on Alternative Dispute Resolution will focus on the use of mediation in family law matters.

Mediation offers the parties an opportunity to meet with a neutral party and have issue-focused discussions towards the settlement of the divorce or custody proceeding. The mediator is a neutral third party who facilitates discussion and tries to guide the parties to a resolution by using interest/issue-based, rather than position-based, discussions. Mediation is often very helpful in divorce proceedings, and it can lead to parties settling in a way they find mutually beneficial, without causing unnecessary harm to their familial relationship.

While mediation may be used from the start of a matter, it can also come into play at any later time in divorce proceedings, and even post-decree.

Keeping with the trend towards ADR in divorce proceedings, clients are often encouraged to include a mediation clause in their final decree. Such a clause would require mediation prior to any court proceedings, should one of the parties have an issue to address in the future.

There are additional ADR alternatives to mention that may be used in place of mediation. These include arbitration, mediation-arbitration, and Consensual Special Magistrates. Arbitrators and Magistrates act like judges and have the authority to make decisions for parties, which may or may not be binding. Mediation-Arbitration is just as it sounds: a combination of mediation and arbitration. Here, the mediator can turn into an arbitrator if the parties cannot reach agreement on their own.

Yet, mediation is by far the most commonly used in divorce proceedings. Also, it is the only of these alternatives to truly put the decision-making power completely in the hands of the parties. Since minimizing court-type atmospheres is often a goal in using ADR, mediation is the method of choice to move towards a resolution of the parties’ own making.

Anyone who has seen the movie Kramer vs. Kramer shudders at the idea of a divorce trial. The heated confrontations, adversarial attorneys, rabid emotions, and ultimate poor trial outcome in the movie could scare many away from the divorce process. Yet, thankfully, the adversarial divorce trials that make for a good drama film are mostly a thing of the past. Nowadays divorce proceedings seldom conclude in a contested trial, where a judge determines what is best for the family involved. There is now generally an understanding that the best-equipped party to determine what is best for the family is the family itself. Thus, divorcing couples are encouraged to engage in various avenues of Alternative Dispute Resolution (ADR) in order to form a divorce agreement between the parties.

While this pleases judges by saving them the headache of making important life decisions for people they barely know, it is also more favorable to divorcees, who actually feel they are a party to the decision-making process. Thus, even if the end results are not exactly as they would have wanted, parties tend to feel they have contributed to the ultimate agreement, and are therefore much more likely to abide by it and feel content doing so. Truly, all parties benefit from a process which involves maintaining family relationships rather than pitting family members against one another.

If parties wish to go with ADR from the start, they may choose to prepare a petition for divorce, send it to the other party, but never file it with the court. This starts the process as far as notifying the other party, but it keeps the court out of it and lets the parties work at their own pace. If a petition is filed with the court, the court gets things moving and begins scheduling court proceedings.

If they go the route of not filing with the court, the parties are now left to take whatever course they see fit. This may be negotiations between the attorneys or the parties may choose to go to mediation, with or without attorneys present. They may eventually choose to get the courts involved on some level as well. There are many possible routes, with more or less focus on ADR, allowing parties to choose what best fits their situation.

In its many forms, ADR is common and greatly encouraged in family law. This is a trend that most attorneys and divorcing parties find to be beneficial and indeed a better fit than litigation for this area of law. It is likely that ADR will only become more commonly used in divorce proceedings, and this will lead to less adversarial divorces and hopefully more long-term happiness for the families involved.

Because of the variety of ADR options and the importance of this topic, this article shall be the start of a series on ADR in family law. The following blogs will cover more details and point out the various possible routes to take.

Many people have heard of trusts as, among other things, an estate planning tool.

However, very few people understand how trusts work or why they are so beneficial. The trick is explaining it without going into 400 years of English property law. Here is my attempt:

Every property has two parts to it: the benefit and the burden. They are exactly what they sound like. The benefit to the property is any advantage derived from it (interest, rents earned, intangibles, etc), while the burden is any cost associated with it (taxes, rents paid, loans, other costs of upkeep).

A trust operates as a device that takes property from one person (the settlor) and splits the burden and benefit of it between a trustee and beneficiary, respectively.

As noted in an earlier blog post, the settlor, trustee, and beneficiary can all be one person in Minnesota. However, a legal mechanism called the “merger doctrine” operates in many other states that prevents this. The doctrine states that once the exact same person or people are the trustees and beneficiaries, the burden and benefit parts of the property are held by the same person or people, and are therefore merged together and the trust is destroyed.

However, there is a simple estate planning exception to this rule.

If there are “residual beneficiaries” at the time the trust is created, those residual beneficiaries – or individuals who are to receive whatever’s leftover from the property when primary beneficiary’s done with the property (i.e. has passed away) – are considered beneficiaries along with the primary.

Therefore, no merger occurs and the trust remains valid. There are several different varieties of trusts, each with distinct advantages and purposes.

In this blog entry, I will only be discussing the significance of revocable living trusts to estate planning.

Revocable (as opposed to irrevocable) trusts allow the settlor to change or revoke the trust at any time. While this allows the settlor a great deal of control over the assets in the trust, the downside is that the tax benefits brought by irrevocable trusts are not found. Living (or “inter vivos”) trusts simply refer to a trust created during the lifetime of the settlor, as opposed to a testamentary trust, which is created through a will at the time of the testator’s death.

The primary benefit of a revocable living trust is that it avoids probate, which can be a very costly and time-consuming procedure.

While it does not avoid estate taxes, this does not tend to be an issue for smaller estates (under $5 million in assets per person) since there is an exemption up to that amount.

An additional benefit of a revocable living trust is that it allows for the planning for incapacity: with the proper terms included, a successor trustee can be appointed in case you are medically incapacitated to use the property in the trust for your benefit and care.

No further changes to a properly drafted trust agreement need be made to account for such a situation.

The field of trusts is very complex and expansive, and a trust agreement should not be drafted without first consulting an experienced estate planning attorney.

If you have any questions about planning your estate, contact Byellin Law for a free consultation.

For many people, a home is the largest single asset he or she will ever own. Beyond a primary residence, real estate can represent a significant portion of an individual’s wealth in the form of investment properties.

Unfortunately, the probate system generally creates the most complications for real estate than any other form of property.

Despite how uncomplicated the estate is otherwise, or even if the estate consists solely of real estate, the presence of any real estate in a decedent’s belongings can create headaches for all involved.

Why is this?
The main reason is that many county recorders will not recognize a Probate Registrar’s determination of heirs, which essentially means that a county recording office may not recognize the title as being transferred from the deceased to his or her heirs. This can create significant problems for these heirs should they ever try to sell the property since they would not be recognized as holding a marketable title to the property. Thus, to avoid this, the estate must go through formal probate administration.

The only real exceptions to this are where the will specifically identifies the real estate and specifically identifies by name who is to receive the real estate or where the will leaves the entire estate or residue to specifically-named individuals (there are lesser exceptions, but would still require some higher level of court intervention).

As anyone who has ever had to experience a formal probate administration would tell you, it is not a brief, cheap, or by and large enjoyable experience.

Moreover, if real estate located in another state is part of the estate, a separate probate proceeding must be commenced therein, consuming even more time and resources.

There are several solutions to this problem, however.
The first option is joint tenancy, more specifically “joint tenancy with right of survivorship,” which means that the real estate is held jointly between two individuals, and when one passes away, the other or others automatically gain the decedent’s share.

This is a device employed by the majority of married couples already, but it could also conceivably be used to pass property on to other heirs such as children. If an heir or heirs were added as joint tenants in the title of another’s real estate, at the time of that original owner’s death, the property would pass instantly to the heir or heirs.

The problem with this approach is that the heirs would become part owners of the property during the original owners’ lifetimes, and any decisions regarding the property (i.e. selling, mortgaging, etc) would be subject to the heirs’ approval first.

The second option is the creation of living trust (also sometimes called an “inter vivos trust”). A trust operates by transferring property from one person (the “settlor”) to another (the “trustee”) who then holds and/or uses legal title to it for the benefit of a third person (the “beneficiary”). Strangely enough, all three of these roles can be filled by the same person (at least in Minnesota).

The advantage comes in that trusts allow trust assets to be used for specific purposes, and allow for successor trustees and beneficiaries to be named. Also, trusts allow for specific instructions on handling and disposition of trust assets should the trustee or beneficiary become incapacitated or die.

A very common scenario involving trusts with real estate is an individual or joint owners of real estate placing their home into a trust, naming themselves as joint trustees and joint beneficiaries. A successor trustee and successor beneficiary can be named, and instructions can be given on what the trustee is to do with the trust property (the real estate) should the original owners (now the trustees and beneficiaries) become incapacitated or die. Thus, an owner can continue enjoying her home throughout the rest of her life, and then have it pass to whomever she wishes when she passes away.

The only real disadvantage is that the property owner must abide by the terms of the trust, which, if well-drafted, should not pose any significant limitation on the use of the property.

If you have any questions about planning your estate, contact Byellin Law for a free consultation.

Many people choose to have their wills done themselves without the involvement of an attorney. This approach is perfectly acceptable for simple estates. However, even in such situations, I have run across several common mistakes on these wills that have a large impact on how the will is viewed by the courts after the testator’s death, and could also increase the likelihood of a contest of the will.

The first of these common mistakes involves witnesses. Namely, there are not enough that have signed the will. In the state of Minnesota, a valid will must be signed by the testator and (at least) two witnesses, all of which must sign in the presence of the others. A will that is typed up and signed only by the testator is not valid, and the testator of such a will is considered to have died intestate by the courts. So the lesson here is always have two witnesses sign a will if you want it to be valid.

The second mistake is related to the first: to notarize or not to notarize. While Minnesota does not require a valid will be notarized, a self-proving will does require notarization. A self-proving will is not a special kind of will, but it is a will with a special provision that certifies that the testator and the witnesses properly signed the will (and that the entire execution of the will was proper and valid under state law).

What is the benefit of a will being a self-proving one? There is no need to locate the signing witnesses when trying to admit the will into probate. If the will is not self-proving, at least one witness must be located to prove that the testator was at least 18 years of age, of sound mind, and knew what he or she was doing when the will was executed. If the witnesses are easily available, this typically does not mean anything more than some additional legal fees to get these affidavits from one of the witnesses. However, if at least one witness cannot be found or both are deceased, then additional evidence must be found proving the validity of the execution of the will. Even in a situation where the evidence is easily discoverable, the legal fees can be significant. Where there is scant evidence, and there is any possibility of the testator not being of sound mind (such as with a testator advanced in age), the legal fees can be even more, and there is always the possibility that the will would be rejected as invalid by the probate court.

Notarizing a will is a very simple step you can take that goes a long way in saving time and money down the line.

Lastly, one of the biggest mistakes I’ve seen is not revoking a previous will in a current will. This has the effect of simply updating your previous will, and the will would be taken together with any previous wills that were not voided.

For example, let’s say you drafted Will A, which leaves $50,000 to Abby. You later decide that Abby does not deserve anything, and decide in your next will, Will B, to cut her out completely. However, you do not have a provision voiding Will A or one that specifically says that Abby is intentionally excluded from the will. Thus, upon your death, if both wills make their way to the probate court, Abby will get $50,000 despite your wishes that she get nothing.

Yes, you can invalidate an old will by defacing it (i.e. writing “VOID” across all of the pages) or destroying it (fire is a reliable bet), and you still should destroy old wills regardless of their invalidation in future wills. However, adding a clause to your will conclusively stating that all previous wills are void will demonstrate to the probate court that you did not intend that will be to read with any other wills, and it greatly reduces the possibility of a will contest.

These mistakes are easily fixed during the drafting process. Anyone can avoid these common pitfalls very easily, and they are well worth the small amount of effort in saving your heirs time and money.

Contact Byellin Law if you have any questions about drafting your will for a free consultation.

When a husband and wife are looking at creating a will, they often assume the will is a single document covering the both of them. This document is called a “joint will” (or sometimes a “mutual will” or “joint and mutual will”). However, these types of instruments are not common nowadays.

What is a joint will, and how is it different from a traditional will?

A joint will is what it sounds like: it is a single document operating towards the disposition of property of two people (typically a husband and wife) after their deaths. The added element here that distinguishes it from a traditional will is the fact that it also operates as a contract: the two testators are bound to follow the provisions of the will unless they both agree to change the terms.

The rub here is that once one of the spouses dies, the joint will becomes irrevocable. What happens if one spouse dies 20 years before the other? Or 50 years before the other? Circumstances may change, but the joint will certainly will not.

The reason why joint wills are problematic is the very reason they were conceived to begin with. The instruments came about to prevent a widow from leaving the possessions of his or her dead spouse to someone whom the dead spouse would not approve (i.e. stepchildren).

There are several other legal problems that arise with joint wills.
First, the surviving spouse has a very limiting property interest in the estate left by the dead spouse: a life estate. Without going into much detail (since that much information will only really be helpful to someone in a property law class or on the bar exam), a life estate means that a person only has legal title of some property for the life of a person (typically the life of the current owner). After that person dies, the property goes to whomever the joint will says it does.
The problem here is pretty obvious. Who’s going to buy a house that they can only own as long as the seller is alive? The widow has now not only lost his or her spouse, but he or she is also stuck in the same house until the day she dies. All property is essentially locked in place until both testator’s die.

The second problem is less serious, but still a concern: joint wills are not favored by courts. If there is any question as to whether a document is a joint will, the courts will almost certainly rule against such a determination. However, this does not mean that the document is treated as two separate wills; it means that the court views both people as having died without a will. At this point, the state law determines who gets what. While such an error would unquestionably be the drafting lawyer’s fault, monetary damages from a malpractice suit are little consolation when grandma’s prized antique rocking chair had to be sold so the proceeds could be used to ensure all heirs got their statuary share.

In short, joint wills can work in some situations, but they are generally a bad idea. In planning their estates, most people would like to be able to change their minds. Joint wills limit that ability greatly. So before you get hooked on the idea of drafting a single will together with your spouse, consider the consequences.

Contact Byellin Law if you have any questions about planning your estate.