Chermack Law | Category Archives: Family Law

What if you can’t reach a divorce agreement?

Posted on July 10, 2018 by Elizabeth Rosar Chermack

In a couple of previous posts, I talked about getting divorced in Minnesota when you and your spouse are in agreement on all terms of your divorce.

If you aren’t able to reach an agreement, then you are likely going to have a contested divorce. That does not mean that you have to be in court forever. It also doesn’t prevent you from eventually reaching a divorce settlement.

The family court system in Minnesota is set up to encourage parties to try to reach an agreement. Parties can file for divorce without being in agreement as to how to resolve the divorce. You will still be given ample opportunity to negotiate a divorce settlement.

For example, at your first court date after filing a contested divorce, you will have an opportunity to opt-in to Early Neutral Evaluation (ENE). If you are not able to reach a settlement at ENE, you may have a pre-trial or a temporary hearing. Eventually, if you and your spouse are not able to reach an agreement on all issues, you may end up going to trial and asking the Judge to decide those contested issues for you.

As an attorney, I do not “churn” my clients’ cases for fees. If a client wants to proceed in a certain manner in their case, I do my best to let them know the possible costs of doing so: both the financial costs and the “real life” costs. Sometimes the only way for a case to resolve is by going to trial; for example, if the opposing party is not being honest, safe, or willing to comprise. However, going to trial is not typically what is best for families. It is expensive, and it leads to animosity and finger-pointing between the parties. When children are involved, it’s important to remember that you will still need to co-parent with this person even after the trial is over and the divorce is final.

As an attorney, I work with my clients to help them settle their cases. If you cannot reach a settlement agreement, though, I am able to represent you at trial.

Elizabeth Rosar Chermack, Attorney at Law, is a Dakota County divorce lawyer. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Elizabeth Rosar Chermack, Attorney at Law.

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Property division in a Minnesota divorce

Posted on August 17, 2017 by Elizabeth Rosar Chermack

When a married couple is divorcing in Minnesota, their divorce decree must resolve the issue of property division. All assets and debts of the parties must be divided between the parties.

Minnesota law requires that there be a “just and equitable division” of the parties’ marital property.

In addition to determining the values of the parties’ marital property and determining what a “just and equitable division” of said property looks like, the following needs to be considered:

Is there any nonmarital property? How is the value of that nonmarital property calculated? Will any nonmarital property be awarded to the other spouse in order to prevent “unfair hardship”?

What is the valuation date? Minnesota law states the following in regards to the valuation date: “The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.”

In order to determine whether a proposed division of marital property is “just and equitable,” the parties need to make full disclosure of their assets and debts to one other. When one party is not being cooperative or honest, it becomes difficult to easily reach a “just and equitable” property settlement.

Elizabeth Rosar Chermack is a lawyer with an office in Dakota County, and can represent you in your divorce. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Getting divorced without going to court

Posted on July 10, 2017 by Elizabeth Rosar Chermack

I offer an affordable flat fee rate for couples who are divorcing in Minnesota and who have reached agreement on all issues in their divorce case. I also offer a similar flat fee option in uncontested custody cases.

A lot of people wonder if they have to go to Court in order to get divorced. The answer is “not always.” In certain cases, parties can submit a Stipulation and proposed Judgment and Decree to the Court and get divorced without ever having to step foot into a courtroom. See Minn. Stat. § 518.13, subd. 5.

If you want to find out if you could get divorced without having to go to court, call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Elizabeth Rosar Chermack, Attorney at Law.

Antenuptial Agreements in Minnesota

Posted on June 26, 2017 by Elizabeth Rosar Chermack

Many couples consider entering into an Antenuptial Agreement (commonly referred to as a “prenup” or a “prenuptial agreement”) before getting married. Minn. Stat. §519.11 provides the procedural requirements that must be followed.

If you are thinking about entering into an antenuptial agreement, you should consult with an attorney as far in advance of the wedding as possible. Additionally, both parties should be represented by attorneys who are experienced in both family law AND in drafting and reviewing antenuptial agreements.

In order for a Minnesota antenuptial agreement to be enforceable, the agreement must be procedurally and substantively fair.

Procedural fairness. Minn. Stat. §519.11 sets out the procedure that must be followed for a couple to enter into an enforceable antenuptial agreement. These requirements include a full disclosure of income and assets by both parties and that both parties have an opportunity to consult with an attorney. Please read Minn. Stat. §519.11 in its entirety to understand all of the procedural requirements. These requirements must be followed to ensure procedural fairness.

Substantive fairness. Whether an antenuptial agreement is substantively fair is a question of fact. The parties won’t know if their antenuptial agreement will be upheld by a court until and unless they ultimately end up divorcing. McKee-Johnson v. Johnson sets out a two-pronged test to determine whether an antenuptial agreement is enforceable:

The agreement must be substantively fair in light of the circumstances existing at the agreement’s inception; AND
The agreement must be substantively fair at the time of enforcement (i.e. Have circumstances changed that would make the enforcement of the agreement oppressive and unconscionable?)

Elizabeth Rosar Chermack is a lawyer who lives in Apple Valley, Minnesota, and can assist you with your Antenuptial Agreement. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Changing custody and parenting time when both parents agree

Posted on June 12, 2017 by Elizabeth Rosar Chermack

If both parents agree that changing custody and/or parenting time is in the child’s best interest, then the parents will want to formalize that agreement and submit it to the Court for the Judge to sign and enter as an Order. This formal document is a “Stipulation and Order.”

Sometimes parents might not think it’s necessary to go through that process. They might not think that they need the Court to be involved. They might not want to spend the money to have a document drafted and submitted to the Court.

In my experience, though, it is best to formalize the new agreements and have them approved by the Court. This is because even though the parents might be getting along great right now and they agree to the changes now, if that co-parenting relationship changes and a parent changes their mind, the informal agreements are not an Order and are not enforceable.

In my law practice, I will typically charge a lower flat fee to draft and submit a Stipulation and Order to Modify Custody and/or Parenting time if there is an agreement. Getting your agreements formalized so you have an enforceable order (and remember that enforceable orders typically lead to stability for children which is in their best interest) does not have to be an expensive undertaking.

Elizabeth Rosar Chermack is a Burnsville lawyer, and can represent you in your change of custody and parenting time matter. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

Potential income and child support

Posted on May 31, 2017 by Elizabeth Rosar Chermack

In order to calculate the amount of child support that should be ordered in Minnesota, the amount of each parent’s gross monthly income needs to be determined.

Sometimes it is easy to determine each parent’s income for child support purposes. For example, when a parent earns a regular salary each month as a W-2 employee, there aren’t a lot of questions about the amount of their income.

What if a parent is not employed OR what if a parent is voluntarily underemployed?

In Minnesota there is a rebuttable presumption that a parent can be gainfully employed on a full-time basis. See Minn. Stat. §518A.32 subd. 1.

If a parent is unemployed or voluntarily underemployed, then child support is typically calculated on the basis of potential income. See Minn. Stat. §518A.32 subd. 1.

How is potential income calculated? (1) Based on the parent’s probable earnings; (2) The actual amount of unemployment compensation or workers’ compensation benefit received; or (3) the amount they would earn by working 30 hours per week at a job that pays minimum wage. See Minn. Stat. §518A.32 subd. 2.

Elizabeth Rosar Chermack is a lawyer who practices family law in Minnesota, and can represent you in your child support case. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with her.

Who will take care of my child if I am deported?

Posted on March 3, 2017 by Elizabeth Rosar Chermack

My blog is not a place for me to “get political.” As such, I am not going to delve into the political issues that are involved with this topic. In the last month or so, though, I have had several people ask me what they can do now to make sure their (U.S. citizen) child will be taken care of in case they get taken into custody or deported.

Regardless of how you feel about it, there are parents of children here in the United States who are considered to be here illegally (“undocumented”). They may, however, have children who are citizens of the United States. If these parents end up being taken into custody or deported, who will take care of their children?

In Minnesota, parents can sign a legal document called a “Delegation of Parental Authority” that designates other people to act as the parent(s) for their child in case they are not available to parent their child. A Delegation of Parental Authority is only good for one year, so it is something that you need to redo each year. There are different ways that a Delegation of Parental Authority can be drafted – depending on the situation, the parents, and the child.

I also recommend that parents in this situation consult with an immigration attorney to see if there are any options for them to gain legal status so they do not have to be worried about being separated from their children.

Elizabeth Rosar Chermack is a Dakota County Family Law Attorney, and can assist you in drafting a Delegation of Parental Authority. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with her.

Initial Case Management Conference in Dakota County

Posted on October 10, 2016 by Elizabeth Rosar Chermack

In Dakota County (and many other counties in Minnesota), if you or your spouse have filed for divorce and opened a court file, but you have not yet reached agreement on all issues of your divorce, your first court date will likely be the Initial Case Management Conference (ICMC).

You might be wondering what will happen at the ICMC. For a lot of people, it is their first time ever actually going to court, so it feels scary. Luckily, ICMC is not scary. You (or your attorney) will need to fill out the ICMC Data Sheet ahead of time, and will need to bring it to your ICMC along with any required documents (tax returns, paystubs, etc.).

The main point of ICMC is to learn about different ways that your divorce can proceed. There are 2 different “tracks” by which your divorce can proceed: (1) the traditional litigation track; OR (2) the Early Neutral Evaluation (ENE) process.

Parties are strongly encouraged to participate in the ENE process. During the ENE process, the parties (and their lawyers) meet with an evaluator (or more than one evaluator) to resolve their financial and/or custody and parenting time issues. A large majority of cases settle during or as a result of ENE.

Choosing to participate in ENE instead of initially choosing the traditional litigation track tends to be more cost-effective as well.

Elizabeth Rosar Chermack is a Dakota County Family Law Attorney, and can represent you in your divorce or custody case. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with her.

Stepparent Adoption in Minnesota

Posted on March 12, 2015 by Elizabeth Rosar Chermack

If you are a stepparent and want to adopt your stepchild, it is possible to do so. The easiest, most straightforward way to do so is when you have the agreement of the biological parent to consent to the adoption. For example, if you are a stepfather and you want to adopt your stepson, the easiest way to do so is if your stepson’s biological father is willing to agree (by signing a consent form) to the adoption. As part of the adoption, the biological parent can still enter into a “Communication and Contact Agreement.” In other words, just because they have consented to the adoption to taking place, the biological parent is not giving up their ability to ever talk to or see the child again.

Cases in which the biological parent is not willing to consent to the adoption are not as straightforward.

If your stepchild is 14 years old, or older, they will also have to consent to the adoption.

Elizabeth Rosar Chermack is a Minnesota Adoption Attorney, with an office in Burnsville, and can represent you in your stepparent adoption. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.

How do I change a child custody order?

Posted on January 15, 2015 by Elizabeth Rosar Chermack

In Minnesota, Minnesota Statute Section 518.18 provides the law for changing a child custody order. The easiest way to modify a child custody order is by agreement. In other words, if both parents agree to change custody, it is going to be much easier to get an order from the Court that changes custody.

Many times, though, parties are not in agreement about modifying custody. If that is the case, then you will need to bring a motion to change custody. You have to have a statutory basis for bring your motion. Two examples of a statutory reason to bring a motion to modify custody include: (1) denial of or interference with parenting time; or (2) physical or emotional endangerment to the child. A party also must show that the modification is necessary to serve the best interests of the child.

The process of trying to change a child custody order can be very slow and expensive. Although emergency orders may be issued in some cases, many cases take between six months to a year to be resolved. When you believe your child is endangered, the wait can be agonizing. In some cases, parents may try to contact Child Protective Services in order to report the abuse.

Elizabeth Rosar Chermack is a Minnesota Child Custody Attorney, with an office in Burnsville, and can represent you in your child custody matter. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.