Dirty Tricks, and How to Avoid Them

Dirty Tricks, and How to Avoid Them

- by Eric C. Nelson, Attorney

Note: I am not writing about these dirty tricks to encourage their use. On the contrary, I'm writing about them as a warning, and as something to beware of.

I. "Trial Separation."

Spouse #1: "I still love you, but we need a trial separation while we work things out, or I'll have to divorce you immediately. Meanwhile, you go stay at the YMCA and leave me here in the home with the kids."

Spouse #2: "I love you too. For the sake of our marriage, I'll do whatever it takes."

Several months later, Spouse #1 serves Spouse #2 with a Petition for Dissolution, seeking sole physical custody of the children and occupancy of the homestead. Spouse #1 argues that for the sake of continuity and stability for the children, he or she should be awarded custody of the children and exclusive occupancy of the homestead.

Lesson: don't agree to trial separations without first consulting a lawyer, as it will be very important to arrange the trial separation in a way that doesn't prejudice your rights should you still end up in divorce.

II. "Forget What the Papers Say, I'll Do This or That"

Dupe signs the papers, and you know what happens next. There are various manifestations of this dirty trick, such as:

 *   "Sign the papers giving me sole physical custody. You know I'll let you see the kids whenever you want."

 *   "Give me custody this year, and then I'll let you have custody when the child starts school (or substitute some such future event or time frame)."

 *   "Sign the papers withholding X amount of child support from your pay. I know it's too high, but I'll refund the difference."

 *   "I'm sorry you lost your job, but there's no need to change the support order, because I agree you don't have to pay me while you're unemployed." (Later, dupe is hit with enforcement action for tens of thousands in arrears).

Lesson: Remember, "the papers" are always controlling. Your verbal side-agreements are totally unenforceable.

III. "Let's Move to Alaska: after You Find Us a Place, I'll Come Join You with the Kids."

This is all too common. Parties agree to move the family to another state. Spouse #1 moves there first to find housing and get situated. Spouse #2 promises to join Spouse #1 at the end of the school year (or some other future time). Then when the appointed time arrives, Spouse #2 instead sues for divorce in the home state, and asks for sole custody of the children and exclusive occupancy of the homestead, for the sake of continuity and stability for the children. Spouse #1 is at a huge disadvantage unless he or she moves back to Minnesota immediately.

Lesson: Don't ever move away from your family if there's any chance you may be headed for divorce.

IV. Dismiss Case When You Start Losing, Then Try Again Later

I have had some cases where, after it becomes clear that my client is likely going to be awarded sole physical custody of the children, the spouse suddenly wants to reconcile. Now, sometimes this is sincere. One of those cases happened several years ago, and the parties remain happily married to this day. The danger to watch out for is that the reconciliation pitch is just a fraud to enable the other spouse to try again for a better outcome at a later date, with a different judge and custody evaluator. It happens.

V. Moving Family & Friends into Marital Home During Divorce

It often happens that during the pendency of a divorce, both parties remain in the marital home despite the hostility, because neither wants to suffer prejudice in a dispute over custody, parenting time, or the award of the homestead itself. In such situations, one party may invite friends or family to stay as semi-permanent overnight house guests, in the hope that this will drive the other party so insane that he or she will give up and move out. And even if you don't, now there are hostile witnesses in your house who will write affidavits complaining about your every move.

Don't fall for it. The best counter-measure is to invite your own guests over to serve as support-persons and witnesses of your own. (Usually by this point both parties will agree that neither will have guests over as long as they continue to share occupancy of the house).

VI. "Oh By the Way, Kid #3 Isn't Yours."

This is too rare to worry about, but I've seen it. At the time of divorce, the father learns for the first time that one or more of the children he thought were his in fact were sired by his best friend, neighbor, co-worker, or some guy he's never heard of from the local pub. Sometimes this can cause problems obtaining custody, because if the biological father somehow obtains a paternity order, a major legal obstacle is created. Now the husband-father must either try to obtain custody of only his own biological children - which is unlikely given the strong case law against splitting up siblings - or he must try to get custody of all of the children, including those not his own, which is extra difficult when you're not the father.

Facts About Name Changes.

Name Changes in Minnesota Divorce and Custody Cases
- by Eric C. Nelson, Attorney
I. Name Changes of Parties in Divorce.

Outside of divorce proceedings, a name change is a separate legal action requiring a separate case filing fee, various forms, and a court hearing with witnesses. [1] As part of a divorce proceeding, however, a name change can be easily obtained as part of the final divorce decree -- with rare exceptions -- simply for the asking. [2] A name change in a divorce is not limited to restoration of one's maiden name. Any new (legal) name may be obtained by either party.

One consideration: one reason many wives choose not to change their names in the divorce is that they want to continue to have the same last name as their children born of the marriage. Although having a different last name than one's children does not affect one's legal rights, it can lead to confusion in some situations.

II. Name Changes of Minor Children.

A parent has the right to apply for a name change on behalf of his or her minor child. [1] However, this is not normally granted over the objection of the other parent. The Minnesota Supreme Court has held that:

". . . judicial discretion in ordering a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change." [3]

In a subsequent case the Minnesota Supreme Court provided further guidance, holding that the name change of a minor child may only be granted when it is determined to be in the child's best interests, which the Court held to include the following non-exclusive list of factors: [4]

    the child's preference;


    the effect of the change of the child's surname on the preservation and the development of the child's relationship with each parent;


    the length of time the child has borne a given name;


    the degree of community respect associated with the present and the proposed surname; and


    the difficulties, harassment or embarrassment, that the child may experience from bearing the present or the proposed surname.


That said, although they can be difficult to obtain over the objection of the other parent, name changes can be granted under the right circumstances. A parent who desires such a change should not assume it is hopeless, just as a parent objecting to such a change should not take its denial for granted.

Endnotes:

    Minnesota Statute section 259.10 et seq.
    Minnesota Statute section 518.27.
    Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974) (reversing name change granted by trial court over father's objection).
    In Re Saxton, 309 N.W.2d 298 (Minn. 1981) (affirming denial of name change).

FAQ: Can I Beat the Kids?

Minnesota law allows a parent, legal, guardian, teacher, or other caretaker of a child or student to use "reasonable force" to "restrain or correct the child." [1] That said, in the context of a pending divorce or child custody case, it is inadvisable to use any kind of corporal punishment at all. Many of the guardian ad litems, custody evaluators, psychologists, and others involved in the family court system have strong feelings against the use of any kind of corporal punishment or physical correction of a child at all; and a parent's use of corporal punishment might become a reason why one of these professionals makes custody, parenting time, or other recommendations that are contrary to your wishes. Also, the use of any physical force at all can be exaggerated by the other parent, who may do so in order to gain an advantage in a custody and parenting time contest, even to the point of bringing a petition for an order for protection against you on behalf of the child. It is far safer, therefore, to use alternative disciplinary techniques, such as time-outs, verbal reprimands, withholding of privileges, etc.

Endnotes:
[1] Minnesota Statute section 609.379, Subdivision 1(a).

FAQ: When Does My Minnesota Child Support Obligation End?

A child support obligation terminates automatically when a child turns 18, or graduates from high school — whichever comes later, but in no case beyond the child’s 20^th birthday. [1].  (A rare exception to this is in the case of a child who is incapable of supporting himself because of a physical or mental condition, in which case child support may continue throughout the child’s entire life).

It is important to remember that the child support obligation terminates automatically at this time. [2]  The obligor doesn’t need to return to Court to stop it.  He just needs to stop paying.  That said, if payment is through automatic income withholding, it is a good idea to alert your child support case worker in advance of the termination date, to be sure they don’t overlook it and continue withholding the money from your paycheck.

Another rare exception to the general rule on termination of child support is in the case of emancipated children.  An emancipated child is not entitled to child support. [3]  Whether or not a child is “emancipated” is an issue that must be decided by the Court on a case by case basis, but will normally require proof that the child is living away from home and is self-supporting.  Termination of child support by reason of emancipation requires a motion in Court.

Finally, parties may agree to continue child support past the statutory termination date.  When this occurs, it is usually based on a mutual desire to support a child through college.  Although the Court lacks jurisdiction to order child support beyond the statutory termination date, the Court does have jurisdiction to enforce a binding stipulation of the parties which provides for that. [4]  If I am representing the obligor, I normally advise against this, because one can always support the children through college if one so desires.  There’s no reason to get the Court involved.


Endnotes

[1]See Minnesota Statute section 518A.26, Subdivision 5.

[2]Minnesota Statute section 518A.39, Subdivision 5

[3]In Re Fihir, 184 N.W.2d 22 (1971).

[4]In Re LaBelle’s Trust, 223 N.W.2d 400 (Minn. 1974).

Taxes in Minnesota Divorce

Taxes in Minnesota Divorce

-by Eric C. Nelson, Esq.

There are a number of tax considerations in a Minnesota divorce.  This article discusses some of the most important ones.

I.    Taxes and Spousal Maintenance.

The default rule is very simple:

a.     Spousal maintenance is deductible “above-the-line” when determining a payor’s gross income for income tax purposes. [26 United States Code section 215(a)].

b.  Spousal maintenance is taxable to the recipient as additional gross income. [26 United States Code section 71(a).

Parties may stipulate to change this by designating a spousal maintenance award as “non-taxable spousal maintenance,” but this rarely makes sense, because the aggregate tax savings is higher when the lower-income taxpayer pays the tax — and the spousal maintenance recipient is almost always the lower-income taxpayer, even after the receipt of spousal maintenance.

II.  Taxes and Child Support.

Child support is not treated as gross income to the recipient, and is not deductible by the payor. [26 United States Code section 71(c)(1)].  In other words, the child support payor pays child support out of his after-tax income.  Parties have no power to change this rule, even by agreement.

III. Strategic Considerations.

Because spousal maintenance is taxable to the recipient and deductible by the payor, whereas child support is not, a common strategy in appropriate circumstances is to maximize aggregate tax savings by designating most of a support award as spousal maintenance rather than as child support.  For example, I recently had a case involving four children where we designated all $4,000 of the monthly support as spousal maintenance and reserved the issue of child support.  This was a win-win situation, because of the tax savings realized through the transfer of income from the higher-paid spouse to the lower-paid spouse.

Tip: if the recipient wishes to be paid through automatic income withholding, it makes sense to designate at least a nominal amount of the support as child support, in order to receive the full benefit of the public authority’s support collections services, which are otherwise very limited in spousal maintenance-only cases.  In cases involving both spousal maintenance and child support, the public authority provides full collections services for both forms of support.

IV. Income Tax Dependency Exemptions

The default rule is that the custodial parent is the one entitled to claim the children as dependents for income tax purposes. [26 United States Code section 152(e)(1)].

The custodial parent is the parent who has custody for a greater portion of the calendar year. [26 United States Code section 152(e)(1)(B)].

That said, parents may change this rule simply by having the custodial parent sign a waiver using I.R.S. Form 8332.  And the Court has the authority to allocate the income tax dependency exemption(s) to the non-custodial parent by ordering the custodial parent to execute this waiver.  [Kriesel v. Gustafson, 513 N.W.2d 9 (Minn. Ct. App. 1994)].

It is common for parties to simply agree to share the income tax dependency exemptions equally.  Courts often order this.  The governing standard is the “best interests of the children.”

V.  Filing Status: Married vs. Single vs. Head-of-Household

Your tax filing status is determined as of the last day of the calendar year.  Therefore, if your divorce decree has not yet been “entered” by December 31^st, then you must normally file as “married” for that tax year. [26 United States Code section 7703(a)(1)].  However, there is an exception for cases where parties file separate returns and have been living in separate households for the last six months of the tax year, and the taxpayer maintains this separate residence as the principal place of abode for a minor child for more than half of the year.  [26 United States Code section 7703(b)].  In this circumstance, a party is not considered married.

To file in a head-of-household status, the general rule is that — among other things — the taxpayer must be deemed “unmarried,” and  must provide the principal place of abode for at least one of the minor children for more than half of the year. [26 United States Code section 2(b)(A)].  It is NOT necessary to claim the income tax dependency exemption for the minor child in order to qualify for the head-of-household status. [26 United States Code section 2(b)(A)(i - ii)].  Parties may NOT change this rule by agreement, nor may the Court change it by court order.  You MUST have at least one dependent in your care for more than half the year in order to file in a head-of-household status.

Minnesota Divorce Lawyer Eric C. Nelson Greeting

I am a solo attorney practicing exclusively in the field of family law in Minnesota, which includes divorce, child custody, and related issues such as child support, spousal maintenance, property and debt division, legal separation, modifications, etc. I've been in practice since 1996. My website, www.minnesotadivorce.com, contains a trove of articles and FAQs on all family law topics, providing helpful insights to anyone involved in a Minnesota divorce, child custody, or other family law case.

For More Information Contact Eric C. Nelson at (612) 321-9402 or enelson@ericnelson.com or visit me at http://www.minnesotadivorce.com/index.html