Stephanie J. Sternke named 2017 Rising Star by Super Lawyers

Stephanie J. Sternke, Founding Attorney at SJS Family Law, has been named to the 2017 Minnesota Rising Stars list by Super Lawyers. This is an exclusive list, recognizing no more than 2.5 percent of the lawyers in the state.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process, which results in a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers and Rising Stars lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in their practice of law. For more information about Super Lawyers, go to SuperLawyers.com.

View Stephanie’s Super Lawyers profile here.

rising stars 2017 picture

How Long Do I Have to Pay Child Support?

Through the use of child support orders, Minnesota seeks to ensure that children of parents who are divorced, separated or were never married, are provided for financially. So how long is a parent obligated to provide financial support for their children?

The General Standard

If you have a child support order in Minnesota, you will be responsible for payment of child support until the child emancipates and is no longer deemed a child as defined by Minnesota Statute. Minnesota statute defines “child” in three ways:

1. an “individual under 18 years of age;
2. an individual under age 20 who is still attending secondary school; or
3. an individual who, by reason of physical or mental condition, is incapable of self-support.”1

Definitions 1 – an “individual under 18 years of age” is self-explanatory. If your child is under the age of 18, there remains an obligation to pay child support. Definition 2 – an “individual under age 20 who is still attending secondary school”, contemplates a scenario where the child has turned 18 years of age and is legally an adult, but is still attending high school and continues to need financial support until they graduate. In this scenario, child support will terminate when the child graduates. Before you worry about what happens if your child never graduates, rest assured that Definition 2 caps a parent’s obligation to pay support by terminating it when the child turns 20 years of age, regardless of whether the child is still attending high school and not yet graduated.

Upon emancipation under Definitions 1 and 2, a child support obligation terminates automatically without any action required by the person paying child support.2

Extending a Child Support Obligation into the Child’s Adulthood

Definition 2 isn’t the only scenario under which a parent may be required to pay child support after their child reached age 18. Definition 3 – an “individual who, by reason of physical or mental condition, is incapable of self-support” provides for a more liberal and inclusive definition of “child”, and contemplates a scenario where the child has turned 18 years of age, and regardless of whether they are attending or have graduated from high school, has been determined to have physical or mental disabilities that prevents them from being able to provide for themselves financially. The Court of Appeals has held that where an adult child requires constant care and assistance in handling their most basic needs due to a mental or physical disability, it is proper to deem the adult child a “child” for support purposes. In reaching that conclusion the court reasoned that where an adult child would remain dependent on others, “the primary obligation for the support of a child should fall on parents rather than the public.”3

Because child support will automatically terminate upon the child reaching the age of 18 or upon graduating high school (but not past age 20), in order for a parent to receive child support for an adult child under Definition 3, they must make a request for continued support by filing a motion with the court. Requests will be analyzed on their unique facts to determine the presence/extent of the child’s disability, and whether it renders child support necessary or terminable.

The existence of a stipulation within a divorce or child custody order which establishes an obligation to provide financial support beyond the age of emancipation may also extend a child support obligation into a child’s adulthood. For example, it is not uncommon for parents to agree to provide financial support for their child’s college expenses, or to continue to provide healthcare coverage for the child while they are in college. Although there is no obligation for parents to do so under Minnesota law, the court will likely enforce the stipulation and require the parent to provide the financial support they had agreed to.4 If you have made this type of agreement or are planning to do so, it is important to set forth specific limitations and terms intended.

Child support is an important and sometimes perplexing issue in many divorce and/or custody cases. To best understand your rights and responsibilities, please contact SJS Family Law to scheduling a consultation. We can be reached through an online contact form or by calling 612-568-5967.

References:
1. https://www.revisor.mn.gov/statutes/?id=518A.26#stat.518A.26.5
2. https://www.revisor.mn.gov/statutes/?id=518A.39
3. Swanson v. Swanson, 372 N.W.2d 420, 423 (Minn. Ct. App. 1985)
4. In re Tr. between La Belle & La Belle, 302 Minn. 98, 100, 223 N.W.2d 400, 402 (1974)

What is a Guardian Ad Litem?

guardian_ad_litem

A guardian ad litem is neutral third-party appointed by the court to act as the voice for the child(ren) involved in a family or juvenile court proceeding.  In the context of a divorce, child custody, or post decree matter, a guardian ad litem, or GAL, has a primary duty to investigate and make recommendations to the Court as to what outcome they believe will serve the best interest of the child(ren).  These recommendations can include which parent(s) will have legal and physical custody, what parenting time schedule should be exercised, and whether the parents or child(ren) should participate in therapy or psychological testing.  The GAL’s recommendations are not controlling, but will be given great weight by the Court when making a final determination of the matter.

What Does a GAL Do?

Once a GAL is appointed, Minnesota Statutes and Rules direct the GAL to “protect the interest of the minor” but give little to no direction on how to best accomplish this.  Thus there is some variance on how any particular GAL program may to go about executing their duty.  To determine the best interests of the child(ren), a GAL will need to become familiar with the child(ren), the child(ren)’s parents, and the child(ren)’s environments.  To do so, the GAL will mostly likely schedule home visits to get to know the family and to better understand the families’ dynamics, lifestyle, routines, personalities, and attitudes.  If the parents reside together, the GAL may interview them together and/or separately.  The GAL may also interview the child if he or she sees fit.  Depending on the child(ren)’s age these interviews may take place at the child(ren)’s school or in their home.  Interviews of the child(ren) may take place with and/or without out the parents present.

In addition to interviewing the child(ren)’s immediate family, the GAL may also speak with the child(ren)’s relatives, teachers, counselors, therapists, and any person with whom the child(ren) spends a significant amount of time.  The GAL may also review documentation such as therapy notes, medical records, school report cards, and court records to obtain additional information as they deem relevant.  Through this process, a more comprehensive picture into the child(ren)’s life can be gleaned.

Following the investigative process, the GAL submits a written, and in some cases, an oral report to the court.  The report often includes a detailed record of the interviews conducted, the documents and evidence reviewed, and of course the interim or final recommendations. These reports may include recommendations on temporary or permanent custody labels, temporary or permanent parenting time schedules, recommendations for services for the parties and the minor child(ren) such as mental health, chemical dependency, and domestic abuse services.

What Are a GAL’s Qualifications?

Minnesota law requires that the GAL meets a minimum level of qualifications to be appointed. The GAL must have a BA or BS in psychology, social work, education, nursing, law, or child-related discipline OR have an equivalent combination of training, education, or experience. The GAL must also fulfill the following:

  • A thorough screening and interview process;
  • Complete a minimum of forty-hours of training approved by the State GAL Board;
  • Domestic and family violence training within the first year of service; and
  • Continuing education requirements.

When Is a GAL Appointed to a Case?

In family law matters, Minnesota Statute 518.165 provides two types of GAL appointments: mandatory and permissive.

In cases where the court has reason to believe that the minor child(ren) is a victim of domestic child abuse or neglect, as those terms are defined in sections 260C.007 and 626.556, respectively, the court is required to appoint a GAL.  The following are examples of allegations that are likely to trigger a mandatory GAL appointment:

  • Allegations of physical, sexual, verbal or emotional abuse;
  • Chemical Dependency issues of the parents that adversely affect the minor child(ren);
  • Neglecting to provide the minor child(ren) with adequate food, clothing, shelter, education, medical care, or other required care for the child’s physical or mental health

In all other cases where the above standard is not met, the court is permitted to, but is not mandated to appoint a GAL.  A court may make a permissive appointment if it has reason to conclude that the child’s interests are not being expressed sufficiently by the parties, or if it appears as though the parent or guardian is hostile or indifferent to the child’s interests.  Due to state funding issues and the immense workload created by mandatory appointments, permissive appointments are rare.

How to Prepare Your Case

The Courts place a great deal of weight on the GAL’s recommendation report, so it is crucial to make sure you are well-prepared if a GAL is appointed to your case.  For that reason it is essential to work with an experienced family law attorney.

 

Stephanie J. Sternke named 2016 Rising Star by Super Lawyers

 

Stephanie J. Sternke, Founding Attorney at SJS Family Law, has been named to the 2016 Minnesota Rising Stars list. This is an exclusive list, recognizing no more than 2.5 percent of the lawyers in the state.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process, which results in a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers and Rising Stars lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in their practice of law. For more information about Super Lawyers, go to SuperLawyers.com.

 

Pet Custody – Who Gets the Family Pet in a Divorce?

dogsOver 62% of American households include at least one pet. 40-50% of marriages end in divorce. So, it is inevitable that a large number of furry family members will find themselves subject to a divorce proceeding. The American Academy of Matrimonial Lawyers reported in a 2014 survey that 27% of the responding lawyers noted an increase in the number of couples who have fought over the custody of a pet during the past five years.[1]

Further, the 2014 Census Survey shows that the number of women between ages 15 and 44 who are having children is at a record-low, at only slightly over 52%.[2] For many people, it is a short leap of logic to say they feel that their pets are akin to children in terms of companionship and love. With such sentiment, the rise in pet custody cases isn’t a surprise.

For families with both children and pets, determining which parent will keep the pet is often a contentious issue—especially if one parent is vying for the pet for the children’s sake. This issue becomes even more problematic if one spouse knows the other really wants the pet, and uses it as a bargaining chip for financial or emotional leverage. Clearly pet custody can get complicated very quickly, so how does Minnesota law come into play?

The Law’s Perspective on Pets

Although many people view their pets as family members, they are treated at personal property under Minnesota law and will be subject to the same rules regarding property division as any other marital property. This also means that the court lacks the authority to provide visitation or custody rights to a pet, just as it lacks such rights with respect to other property.

Given the strong emotional bonds we share with our pets, the comparison to inanimate property can be shocking and upsetting for many clients. That doesn’t mean you should give up hope if you are anticipating a dispute over pet custody. In recent years, many courts have diverged from the traditional approach to pets as property and are helping couples determine pet custody. In Virginia, a court used a “best interests” standard to determine how to award custody of a cat. In some cases, litigants have even offered expert testimony from animal behaviorists, pet care professionals, and the pet’s veterinarian to aid their efforts. These cases, though certainly not commonplace, represent a trend towards the courts’ willingness to elevate the status of pets above that of mere property. While Minnesota has yet to implement a best interest standard regarding pets, a best interest argument may be your best bet for swaying the award of the family pet in your favor. Potentially relevant facts to the issue might include the following:

  • who purchased the pet
  • who was primarily responsible for scheduling and attending vet visits
  • who was primarily responsible for day to day care such as feedings, grooming, pet play-dates, etc.
  • whose work schedule better meets the needs of the pet
  • does the pet suffer from anxiety when in new places
  • is the pet bonded to one owner more than another
  • are there children involved who are bonded with the pet, and would an award to one party over the other party significantly deny the children time with the pet
  • is domestic violence at issue and are there safety concerns for the pet

What Should I Do?

If you are anticipating a custody dispute over a pet, you should seek the guidance of an experienced attorney who can help you devise a strategic plan that will serve the best interests of your pet. In the meantime, it may be helpful to gather records evidencing who purchased the pet, receipts for veterinary visits and care, training, food, supplies, and the like.

Can We Share Custody Of Our Pet?

Couples frequently devise custody or visitation agreements for their pets following divorce that split the pet’s time between the two households, much like they do in parenting time agreements. This allows each party greater freedom to travel or even have a back-up for emergencies that may take them away from their pet for a time. In such agreements couples may agree to share the cost of the pet’s care either by splitting costs down the middle or share the costs in proportion to each party’s income.

Depending on your relationship with your soon to be (ex)spouse, your attorney may be able to assist you in establishing a shared schedule with the pet if you think that is in your pet’s best interests.

Is There Anything I Can Do To Prevent a Dispute Over a Pet?

Pets can end up being used as tools of negotiation or means of revenge during divorce and legal separations. To avoid these emotional ploys and prevent argument, you can memorialize agreements regarding pet custody by placing setting forth terms in a pre-nuptial or post-nuptial agreement. In a pre-nuptial or post-nuptial agreement, parties can establish how ownership, custody and financial support of a pet will be handled in the unfortunate event of a divorce or legal separation. Negotiating an agreement on pet custody while parties are still on good terms better allows parties to consider what is in the best interest of their pet without the negative emotions that usually accompany divorce and separation.

1. http://www.aaml.org/about-the-academy/press/press-releases/pets/pet-custody-disputed-rise-find-nations-top-matrimonial-l

2. http://www.huffingtonpost.com/2015/04/09/childless-more-women-are-not-having-kids-says-census_n_7032258.html

3. http://aldf.org/resources/law-professional-law-student-resources/law-students-saldf-chapters/where-should-you-go-to-law-school/

Prenuptial Agreements: Three Ways they can help promote a long and happy marriage

prenup-mslargeA prenuptial agreement is a contract a couple enters into prior to the marriage that set forth each parties’ financial rights and responsibilities during, and sometimes after the marriage.  While there is still some small social stigma that persons seeking prenuptial agreements are demonstrating lack of faith in the strength and longevity of the relationship, prenuptial agreements are commonly entered into for reasons that go beyond how they will handle divorce.  Consider these four non-divorce related reasons to have a pre-marital agreement that actually promote the health and happiness of a marriage.

Premarital Agreements:

1. Clarify Expectations of the Marriage. Before marrying couples often fail to discuss their expectations for themselves and of their partner after marriage.  While not every expectation directly involves finances, many expectations have financial consequences. Clarifying expectations prior to the marriage allows couples to analyze the compatibility of their respective expectations, come to agreements on conflicting expectations, and resolve the financial consequences of each expectation in advance. Consider the following questions that may or may not be relevant to every couple:

  • What type of employment, if any, does each party intend to pursue after the marriage? Does the employment involve travel? How does each parties’ career choice affect the other’s career or affect other marital decisions such as the decision to have children?
  • Where will the parties reside after the marriage? Does either party own a home prior to marriage? Will the couple reside in a pre-marital home? If the answer is yes, will the other spouse contribute to pre-marital home mortgage payments or expenses? Will the non-owning spouse desire an ownership interest for contributing to the home expenses? What happens to the home if the spouse owning the home dies during the marriage?  If the parties buy a home following the marriage, will either contribute non-marital funds to the purchase?
  • Do the parties plan to have children? Is there the expectation that one party will stay home with the children and put their career on hold; what are the financial consequences to the marriage with one income earner? Will the at home spouse be supported in returning to their career after a period of time or compensated in some manner for leaving their career.

2. Creates a Custom Marital Contract. Once expectations have been discussed parties are in the best position to determine whether their expectations are compatible with one another and whether to proceed with the marriage.  If the determination is affirmative, the prenuptial agreement acts to memorialize these agreed upon expectations and provide the couple with a guide on how the predetermined expectations will affect their financial future.  This will minimize future arguments and financial stress as the issues will have been discussed in detail and agreed upon in advance. 

3. Answers Financial Questions that Often Cause Marital Stress. There are all kinds of reasons people get divorced.  At the top of that list of reasons is “money”.  Financial issues can place a great strain on relationships.  By addressing financial questions at the front end of a marriage, you are proactively eliminating potential for future argument and financial stress after the marriage.  Here are just a few questions a couple may want to consider addressing in their premarital agreement:

  • Whether to file for joint or separate income tax returns and how the liability or refund, if any, will be shared;
  • How will the household bills be paid;
  • Will the parties have joint and/or separate bank accounts;
  • How to handle the acquisition of marital debt (i.e. what amount is acceptable before joint approval is required and who will be responsible for said debts);
  • How to handle pre-marital debt and how it is paid;
  • Whether the parties will be seeking education or training during the marriage and how that is paid;
  • Whether savings and investment accounts will be opened and how they will be contributed to; and
  • Whether one spouse, after their death, will provide for the surviving spouse, and how.

Prenuptial agreements are not about divorce, they are about getting out ahead of any potential issue that might strain or cause damage to the marriage.  By engaging in the exercise of creating a premarital agreement, couples are discussing expectations prior to the marriage, analyzing their compatibility, coming to agreements on conflicting and non-conflicting expectations, and resolving the financial consequences of each expectation in advance.

 

Lottery Winnings (PART 3) – A one in 292 Million Chance, and How it Might Affect Your Family Law Case

With the recent Powerball jackpot reaching $1.5 billion, it’s no surprise that people were flocking to convenience stores across the country to get their hands on what could be the golden ticket.  Although the chances of winning the huge payout were a measly one in 292 million, sales skyrocketed and drove the jackpot to its all-time record high.

lottoDespite the tiny chance of a big payout, the lottery inevitably got people talking about how they would spend the money…buy an island, quit their day jobs, travel the world, and completely reinvent their lives.

What would you do if you were that that lucky one in 292 million winner?  What implications would a win like that have on your personal life?  What if you happened to be going through a divorce or had gone through one even years ago? What if you or your ex was the new billionaire? Most of these questions can be answered by looking at the relevant Minnesota laws and cases.

In this three-part series we will explore:

  1. How lottery winnings might be divided during a divorce;
  2. How lottery winnings might affect a child support obligation; and
  3. How lottery winnings might affect a spousal maintenance award or subsequent modification.

 

PART 3 – How Lottery Winnings Affect Spousal Maintenance

Where the lottery winnings are considered marital property will a party still be entitled to spousal maintenance?

Either party may seek spousal maintenance from the other spouse during a divorce, and although it is not an automatic right, it may be granted if either party demonstrates need.  Where the lottery winning is deemed marital during the divorce process each party is likely to walk away with ½ the winnings and neither would have a need for financial support from the other to meet their monthly living expenses.  If the lottery winnings were deemed non-marital however the Court will consider the following factors in determining whether an award of spousal maintenance is appropriate: the length of the marriage, the age and health of the parties at the time of divorce, the standard of living enjoyed during the marriage, and the relative incomes of the parties.[1]

Would the lottery winnings support a modification of an existing spousal maintenance award?

Similar to child support modification, the party seeking a modification of a spousal maintenance award must show both that there has been a substantial change in circumstances, and as a result, the initial support award is unreasonable and unfair.

Minnesota has long held that the trial court is afforded broad discretion with respect to spousal maintenance awards and whether to later modify those awards, and decisions are made on a case-by-case basis.[2]  Many spouses seek a modification if one party’s income significantly increases or decreases, but if the court finds that the needs of each are still sufficed based on the original order, then a modification is not likely.  While the issue of whether a lottery winning would support a modification of a spousal maintenance award has yet to come before the Minnesota Courts, it’s interesting to look to other states to see how their courts addressed the issue.

In Pennsylvania, a woman in filed a motion for a modification of her spousal support award after her ex-husband won $2.8 million in the state lottery.  The court held that although the husband was now in a much better financial position than his ex-wife, the lottery ticket was purchased after the divorce and was his sole, separate property and the award was not modified.[3]  Even though it might seem fair that one should receive greater spousal support if his or her ex-spouse wins mega millions, unless he or she can demonstrate an increase in need, then the original order is likely to remain in effect.

In the alternate scenario, where a recipient of spousal maintenance wins the lottery, the party paying maintenance would very likely have a basis to modify and potentially terminate the spousal maintenance award. The basis for modification would be that the receiving spouse has a decreased need for financial support from the other spouse as a result of the lottery winning, and therefore the current award should be reduced or terminated entirely.

Because spousal maintenance cases are looked at on a case by case basis with no uniform calculator or formula, consultation with a Minnesota licensed attorney is necessary to assess the strengths and weaknesses of a spousal maintenance award and any subsequent modification request.

[1] Minn. Stat. 518.552 subd. 2 (2015)

[2] Youker v. Youker, 661 N.W.2d 266 (Minn. Ct. App. 2003)

[3] Dyer v. Dyer, 370 Pa. Super. 536 A.2d (1988).

Lottery Winnings (PART 2) – A one in 292 Million Chance, and How Winning Might Affect Your Family Law Case

lottoWith the recent Powerball jackpot reaching $1.5 billion, it’s no surprise that people were flocking to convenience stores across the country to get their hands on what could be the golden ticket.  Although the chances of winning the huge payout were a measly one in 292 million, sales skyrocketed and drove the jackpot to its all-time record high.

Despite the tiny chance of a big payout, the lottery inevitably got people talking about how they would spend the money…buy an island, quit their day jobs, travel the world, and completely reinvent their lives.

What would you do if you were that that lucky one in 292 million winner?  What implications would a win like that have on your personal life?  What if you happened to be going through a divorce or had gone through one even years ago? What if you or your ex was the new billionaire? Most of these questions can be answered by looking at the relevant Minnesota laws and cases.

In this three part series we will explore:

  1. How lottery winnings might be divided during a divorce;
  2. How lottery winnings might affect a child support obligation; and
  3. How lottery winnings might affect a spousal maintenance award or subsequent modification.

 

PART 2 – How Lottery Winnings affect Minnesota Child Support Calculations

Will the lottery winnings be considered income for purposes of calculating child support?

Minnesota Child Support Guidelines are based on an income shares model, which aims to provide the child with the same level of support that he or she would have if the family had remained together.  This model takes each parent’s gross income into account, and each parent pays his/her proportionate share of the Guideline amount.  This amount is based on the state’s estimated cost of raising a child at the parents’ income level.

For purpose of child support calculations, the governing statute defines income as “any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, [and] workers’ compensation,” among others.[1] The Minnesota Appeals Court noted in Herrley v. Herrley that “periodic” is the key word in this definition-“If the payment is periodic, it is income. If the payment is not periodic, it is not income.”[2]

Based on this interpretation of the statute, if the lottery winning is accepted as an annuity (a sum of money paid at regular intervals), then it is to be considered income for purposes of child support.  If the prize is accepted as a one-time lump sum, it lacks a periodic characteristic and may not be considered income for purposes of child support calculations.

Will the lottery winnings support modification of an existing child support order?

Deviations from the state established Child Support Guidelines are rare, but if the lottery winnings take place after the initial child support order, there may be a chance for modification.

A modification in child support requires a substantial change of circumstance of one or both of the parties that make the original child support amount unreasonable and unfair.  A substantial increase or decrease in the income of either of the parties, or a substantial increase or decrease in the need of one of one or both of the parties may constitute a substantial change in circumstances.  Where a lottery winning increases the income of a party, a basis for modification of a child support order may exist.

In a 2015 case regarding support modifications, the Minnesota Supreme Court held that one “can and should make a motion to modify whenever the obligor or obligee experiences a significant change in circumstances, whether upon retirement, disability, or winning the lottery.”).[3]  In addition to proving a substantial change in circumstances, the party seeking a modification must also prove that the current child support order is unreasonable and unfair based on the new circumstances.  Even if one spouse wins a large multi-million dollar lottery and has a substantial change in his/her income, the party seeking the modification must still meet the burden of showing the initial order is unreasonable.

Under Minnesota law, it is presumed that the original child support amount is unreasonable and unfair if the new circumstances of the parties result in a calculated child support amount that is 20% and at least $75 per month higher or lower that the current child support order, or in instances where the current child support order is less than $75, if the new calculation results in an amount that is 20% higher than current child support order.

Simply put, the court will not mandate an upward deviation simply because the obligor has a higher income, especially where the child’s needs are adequately met by the amount determined by the Guidelines.[1]  As always, it is best to speak with a licensed attorney about the specifics of your case to determine if the facts entitled you to relief under Minnesota law.

[1] Minn. Stat. 518A.29.

[2] Herrley v. Herrley , 452 N.W.2d 711, 714 (Minn. Ct. App. 1990).

[3] Dakota Cnty. v. Gillespie, 866 N.W.2d 905 (Minn. 2015).

Lottery Winnings (PART 1) – A one in 292 Million Chance, and How Winning Might Affect Your Family Law Case

With the recent Powerball jackpot reaching $1.5 billion, it’s no surprise that people were flocking to convenience stores across the country to get their hands on what could be the golden ticket.  Although the chances of winning the huge payout were a measly one in 292 million, sales skyrlottoocketed and drove the jackpot to its all-time record high.

Despite the tiny chance of a big payout, the lottery inevitably got people talking about how they would spend the money…buy an island, quit their day jobs, travel the world, and completely reinvent their lives.
What would you do if you were that that lucky one in 292 million winner?  What implications would a win like that have on your personal life?  What if you happened to be going through a divorce or had gone through one even years ago? What if you or your ex was the new billionaire? Most of these questions can be answered by looking at the relevant Minnesota laws and cases.

In this three part series we will explore:

  1. How lottery winnings might be divided during a divorce;
  2. How lottery winnings might affect a child support obligation; and
  3. How lottery winnings might affect a spousal maintenance award.

 

PART 1 – How are a Lottery Winning Divided under Minnesota Law?

Are the lottery winnings considered marital or non-marital property?

Whether a lottery winning is divided between the parties in a divorce proceeding depends on whether the winnings are characterized as “marital” or “non-marital”.  Gambling winnings such as a lottery jackpot can be deemed as income and/or property under Minnesota Law and may be subject to division in a divorce proceeding if characterized as marital property. To determine whether the winning is “marital” Minnesota courts focus on when the property was acquired, giving special attention to two dates: the date of the marriage, and the valuation date.

First, Minnesota law says that property acquired after the date of marriage is presumed marital, regardless of whether the asset is held individually or jointly between spouses, and is subject to division in a divorce proceeding.  This presumption is based on the idea that each spouse makes a substantial contribution to the acquisition of the property while living together as husband and wife, and seeks to promote the economic partnership aspect of marriage.[1]

However, if one party shows that the property was a gift or inheritance intended for one but not both spouses, was acquired before the marriage or after the valuation date, or is excluded by a valid prenuptial clause, then the presumption may be defeated. Where the presumption is defeated, the property would be non-marital and not subject to division in a divorce proceeding.

Second, for property that is deemed marital, Minnesota law says these assets are valued on the date of the Initial Case Management Conference (ICMC), unless (1) the parties agree on a different date or (2) the court determines “that another date of valuation is fair and equitable.”[2]  The ICMC is the first court hearing of a divorce proceeding and marks the endpoint upon which property acquisitions are to be considered marital.

So, if one spouse wins the lottery, the implications seem rather straightforward: If the prize is won after marriage but before the ICMC or other valuation date, then it is marital property and subject to division between the parties. But if the lottery prize is won before the marriage or after the ICMC, it will likely not be considered marital property and not subject to division.[3]

How is a lottery winning divided during a divorce, if deemed marital?

Minnesota Courts seek to make just and equitable divisions when issuing decisions on how property is divided in a divorce.  But what does equitable mean?  It means seeking a division that is fair under the circumstances of the parties.  Minnesota law requires courts to consider a number of factors when determining what is fair under the circumstances such the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, estate, liabilities, needs, opportunity for future acquisition of capital assets, the contribution of each party to the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, etc.   In most cases, what the court deems to be fair and equitable is an equal division of the parties’ property.  In the instance of a lottery winning by one or both of the parties, that is deemed marital, the parties might expect to have it split equally by the Court.

Are there other potential implications of a lottery winning if it is found to be non-marital and not subject to division in the divorce proceeding?

Just because a lottery winning may not be marital and divided between the parties, doesn’t mean that it won’t impact other areas of a family law matter.  There may still be implications with respect to child support calculations and/or spousal maintenance awards.  We address those implications in Part 2 and 3 of this series.  Stay tuned.

[1] Minn. Stat. §518.58 subd. 1.

[2] Minn. Stat. §518.58 subd. 1

[3] Non-marital property commingled with marital property (i.e. non-marital income/monies commingled in marital accounts containing marital income/monies) may dilute and/or defeat the presumption that the property is non-marital, thereby making the non-marital property subject to division in a divorce proceeding- but that is an article for another day.

Should I Stay or Should I Go? – The Top Five Things to Consider Before Leaving the Marital Home During Divorce  

 Broken House Image

If you own a home and are contemplating a divorce, you may be wondering, “should I move out of the marital home?”  As a practical matter, it is likely that at some point one or both parties will need to leave the home, but what should be done in the meantime?  The decision to leave the home is often a reactionary, emotional one.  With emotions running high, and trust at an all-time low, you’ve got all the ingredients you need for conflict.  At first blush, leaving the home may seem to be the simplest way to reduce conflict.  But as is generally the case, decisions made on emotion alone rarely turn out to be wise.  Instead the decision to stay or leave the home should be based on logic and strategy.

“Should I stay or should I go” by the 80’s band The Clash frequently pops into my mind when I’m asked by clients if leaving the marital home makes sense for their situation.

“Should I stay or should I go…

If I stay there will be trouble…

if I go there will be double”.

Now of course The Clash wasn’t singing about marital homestead rights but the verse can and does apply to the question before us…then again, so does the line’s inverse.   Staying in the home with a spouse you no longer wish to be married to can bring its share of “trouble” in the form of uncomfortable interactions, arguments and in extreme circumstances the potential for physical altercations and Order for Protection actions. The “trouble” in leaving the home may come in reducing the strength of your arguments on issues within your divorce such as child custody.

Let’s be honest, there is no one course of action that can make divorce trouble free, but we try to make decisions to mitigate trouble when possible.  At the end of the day it’s a cost basis analysis:   1) Is there any advantage to remaining in the marital home during the divorce process, and if so, 2) Is the advantage of staying and enduring an uncomfortable situation in the short-term worth the benefits perceived to be gained in the long-run?

Whether it is more advantageous to stay in the marital homestead or leave will depend on the particular facts and circumstances of your case.  Speaking with a Minnesota family law attorney about your goals and objectives is the best place to start.  So while you seek out legal counsel, consider the following:

  1. Emotional and Mental Wellbeing Comes First.

Living under the same roof as your spouse during divorce can be uncomfortable or down right unbearable.  Where spouses are able to manage their emotions and behavior in the interest of an amicable split, the emotional stress of uncomfortable situations or minor arguments while living together may be advantageous.  However, where spouses find themselves in frequent and uncontrollable arguments, any perceived strategic advantage to remain in the home may be outweighed by the stress and anxiety caused by living every day in a high conflict situation.  Stress and anxiety caused by high conflict divorces have the potential to seep into other areas of life including relationships with children, friends and family, and can also affect parenting and workplace performance.  In such situations a spouse may find the best course of action is to leave the home.  As always, if physical safety is a concern, place priority there and call your local crisis center for assistance.

  1. Are you forfeiting any property rights to the marital home?

Absolutely not. Understand, by leaving the marital home you are not giving up any ownership rights to the marital home.  Until the court has issued a final order regarding the disposition of your home, your rights remain equal to those of the spouse remaining in the home.   Understand that by leaving, the remaining spouse may develop an expectation of privacy with regard to the home.  Upon separating, parties tend to begin preparing for life without their spouse, and this includes re-establishing the home even when the physical location doesn’t change.  Just as you would not want your spouse coming and going at will from your new home, the remaining spouse will feel very much the same about you entering their home.  So while you have every right to enter the marital home, you can expect the remaining spouse to put up a fight.  As a result, you can also expect to lose a certain degree of control over the upkeep of the home and over household goods and furnishings that will need to be divided as part of the divorce.  To ensure that your interest in this property is preserved, you will want to take inventory of the condition of your home and its contents.  At SJS Family Law, I counsel clients to make a detailed list, take photos, and when possible video record the exterior and interior of the marital home prior to leaving.

  1. Can you be awarded the marital homestead if you leave it during the divorce process?

The answer is, it depends.  Like any question in family law, answers to questions almost always depend on analyzing a number of factors.  In the scenario of who is awarded the house the answer may depend on a number of factors including but not limited to: whether the spouse wanting the home can afford it; whether the spouse with a majority of parenting time wants to remain in the home with the children and the potential disruption to the children by uprooting them from the marital home; or whether the spouse wanting the home has the ability to refinance to remove the other spouse from the mortgage. 

  1. Can you afford to leave the home?

It depends on your financial situation. Bills incurred by the marriage to maintain everyday living such as mortgage/rent, utilities, and related bills continue to be the obligations of both spouses regardless of whose names those bills are in.  In many instances it takes both spouses’ respective incomes to support the marital household.  Supporting two separate households with those same incomes can be challenging.  In situations where one spouse is the main or sole source of income for the marriage they may be responsible for paying most or all of the living expenses of the other spouse who remains in the marital home while paying the living expenses of their new home.  At SJS Family Law, I counsel clients to review their finances carefully and budget before making any decision to leave the home.

  1. Will leaving impact your custody case?

The answer is, it just might.  Spouses who move out of the marital home are rarely in a position to obtain new housing of comparable size and quality to that of the marital home for any number of reasons.  Whether it’s due to financial limitations or insufficient time to locate comparable housing, the spouse who leaves often finds themselves in housing they consider to be temporary and less desirable than the marital home.  In these circumstances it is not uncommon for the spouse who leaves to agree that the children will spend a majority of the time with the remaining spouse in the marital home pending acquisition of more suitable housing or finalization of the divorce process.  And while that decision may very well serve the best interest of the children during the temporary transition, the impact of this decision to a final custody and parenting time decision may not be in line with the goals and objectives of the spouse who leaves the home.  When making decisions about custody and parenting time, the courts are concerned about what is best for the children, not what is best for parents.  Judges place a high priority on reducing the impact of divorce on children by keeping things as stable and consistent as possible.  If the temporary living arrangements seem to be working fine, a Judge may find that keeping the status quo makes sense and that requiring the children to endure another transition would be harmful to them.  While custody and parenting time decisions involve an analysis of many more factors than just where the children are accustomed to living and on what schedule they have been exercising on a temporary basis, it still remains that this will be an additional hurdle the spouse who leaves will have to overcome.

–Stephanie Sternke is founding partner of SJS Family Law, a Minnesota-based law practice focused exclusively in family law.