Chermack Law | Category Archives: Family 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.

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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.

If my spouse & I agree on all the terms of our divorce, do I still need a lawyer?

Posted on January 5, 2015 by Elizabeth Rosar Chermack

Even if you and your spouse have reached an agreement on all the terms of your divorce, it is still important to consult with an attorney. On many occasions, I have consulted with someone who has reached an agreement with their spouse on many of the terms of their divorce, but they have forgotten about a couple of decisions that need to be made.

An experienced attorney also has the ability to suggest specific language or wording to put into your divorce paperwork that will make things go more smoothly in the future.

Unfortunately there have been times when people have decided not to consult with an attorney before getting divorced, and when they DIY-ed it, they left important things out of their paperwork. A year or two down the road, they find themselves in a dispute with their ex-spouse, and spending a lot of time, energy, and money on the post-decree dispute. Often the dispute could have been avoided if they had more carefully drafted their initial divorce paperwork.

If you and your spouse are getting divorced in Minnesota, and you have reached an agreement on all areas of your divorce, you may be able to hire an attorney to represent you for a flat fee in an uncontested divorce.

Elizabeth Rosar Chermack is a Minnesota Divorce Attorney, with an office in Burnsville, 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.

My cliché “New Year, Fresh Start” post

Posted on December 4, 2013 by Elizabeth Rosar Chermack

It’s December, and that means family gatherings, kids being on break from school, painful commuting traffic due to snow (like today!), and… lots of Facebook posts, blog posts, and inspirational quotes about making resolutions for the upcoming new year.

Although it’s cliché, there is something to be said for the feeling that comes – even the freedom that comes – from deciding that things are going to be different in the new year. It is common for people to put off tackling their major life decisions (in my profession the decisions I tend to hear about involve getting divorced or filing for bankruptcy) during the holiday season. Then, come January, they are ready to make those decisions and give themselves a “fresh start” for the New Year.

Not everyone will have major life-changing events occur in the next year – and that is a good thing. Those who are sailing smoothly into 2014 can help support those who will be facing a more challenging 2014. I am not talking about financial support here , either. We can be patient with one another and try to be more understanding when someone seems like they are having a rough day.

“Be kinder than necessary because everyone you meet is fighting some kind of battle.”

– J.M. Barrie

My goal for the new year is to keep the above quote at the forefront of my mind.

How to resolve joint debts and protect yourself in a divorce

Posted on August 6, 2013 by Elizabeth Rosar Chermack

In my previous post, I discussed the unfortunate fact that your divorce decree will not change your contract with your creditors. In other words, if you and your ex-spouse were both jointly liable on a Visa credit card, the divorce decree saying that your ex-spouse is liable for the debt owed to Visa does not change the underlying contract with Visa, meaning: if your ex-spouse doesn’t pay Visa, Visa will very likely try to collect that debt from you.

Here are some possible solutions to remove a party from a joint account:

1) New account with the same creditor. Sometimes, by talking to the creditor first, you can get them to issue a new account with just the liable (according to the divorce decree) party’s name on it. Creditors may not always be willing to do this, as it is obviously beneficial to them to have both of the joint debtors on the hook for the debt. However, some people have had success with this tactic.

2) Refinancing the debt. Find a creditor who is willing to refinance the outstanding debt into the liable (according to the divorce decree) party’s name. Be cautious in choosing this option that the payment terms (interest rate, number of monthly payments, amount of payments, etc.) are doable and that they make sense for you. It wouldn’t make sense to refinance from a 2% APR to a 12% APR if you didn’t have to, right?

3) Paying off the debt using marital assets. If the divorcing parties have enough assets to do so, the parties might choose to pay off their marital debts using their marital assets. That way neither party has to worry about the other party failing to make a payment on a joint credit account.

4) Extreme cases only: bankruptcy. Sometimes a divorcing couple will have a crippling amount of debt and at that point, it may make sense for one or both parties to file bankruptcy. In deciding whether to file an individual or joint bankruptcy and in deciding in whether to file before or after the divorce is finalized, it is important to know your spouse AND it is important to consult with both your divorce attorney and with a bankruptcy attorney.

Resolving joint debts is a common issue that comes up in a divorce. It is important to know your spouse and how reliable they are when it comes to paying their debts before agreeing to something that could negatively impact your financial future. Additionally, because some of the above options may not be available for all people, you will want to do research early on in your divorce. In other words, it doesn’t do any good to agree that each party will refinance the joint debts for which they are responsible (according to the divorce decree) into their own name if it turns out that neither party is actually able to do so due to having bad credit or due to lending practices at the time of the divorce. In order to resolve the joint debts in the way that makes the most sense and in a way that protects you, you need to know what options are available for you on each debt.

Elizabeth Rosar Chermack is a Minnesota Divorce and Bankruptcy Attorney, and can represent you in your case. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.