Questions and Answers

North Dakota

Divorce

It’s about to start! What should I do?

If you believe your marriage is in trouble, there are several ways you can and should protect yourself:

What documents should I gather?

In order to get the most out of the initial consultation with your attorney and save both time and expense, make sure you have copies of the following documents:

Tax returns for the past five years;
Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
Business records pertaining to ownership, assets, liabilities, income and expenses;
Personal and business bank statements for the past year;
Loan applications/agreements, promissory notes, debt statements;
Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
Insurance records including policies, applications, and invoices;
Financial statements or statements regarding your net worth
Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
Complete list of all personal property.

In addition to gathering the above documentation, we encourage our clients to fill out and return our divorce intake sheet.

How long do I have to live in North Dakota to get a divorce?

A divorce in North Dakota may not be granted unless the plaintiff (person filing for the divorce) has been a resident of North Dakota for six months. Oddly, a North Dakota divorce can be started on a person’s first day of residency. It just can’t be finalized until he or she has lived in the state for six months.

As long as the plaintiff satisfies the six-month residency requirement, the court has the authority to grant the divorce even if the defendant (non-filing spouse) lives in another state or doesn’t cooperate.

Is North Dakota a “no fault” state…and what does “no fault” mean, anyway?

In North Dakota, a divorce may be granted for any of the following reasons:

adultery,
extreme cruelty,
willful desertion,
willful neglect,
abuse of alcohol or controlled substances,
conviction of felony,
irreconcilable differences.

The first six of these reasons represent the old-fashioned “fault” grounds for divorce. Although, today, parties don’t usually base their divorce on those old-time reasons, they could. North Dakota chose to add the no-fault reason of “irreconcilable differences” to its statute instead of replacing the old fault grounds.

“Irreconcilable differences” means little more than “I’m not happy in this marriage, and I want out.” Before this was an acceptable legal reason to divorce, parties could be trapped in unhappy marriages.

Even though North Dakota is a “no fault” divorce state—meaning that a divorce may be granted upon a finding of “irreconcilable differences,” North Dakota courts may take marital misconduct into account when dividing asset and debts or considering a spousal support award.

What is the difference between divorce and separation?

There are two main differences between a legal separation and a divorce. The first is that a divorce ends a marriage and a legal separation does not. The second is that assets and debts are completely and finally allocated in a divorce, but not in a separation.

Otherwise, the two actions bear striking similarities and address the same list of issues. Both actions determine custody, visitation and support of children. Both actions allocate possession and control of assets, with divorces proceeding further, to allocate full ownership rights. Both actions allocate liability for debts, with the allocation again being more complete in a divorce action. Both actions address the need for spousal support. Both address tax and insurance issues and more.

Most people in failed marriages prefer the clean and total break a divorce provides. People who retain a realistic hope for reconciliation or who oppose divorce on moral or spiritual grounds may prefer a legal separation.

Generally, how do North Dakota divorce courts divide the parties’ assets and debts?

North Dakota’s statute on dividing property in a divorce case isn’t very helpful. All it says is that "the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper..." N.D.C.C. Section 14-05-24.

The North Dakota Supreme Court has stated that an equitable distribution is that which is "just and proper." In other words, the court can award property in any way it sees fit so long as the distribution is fair to all concerned. It has also instructed trial courts to consider these “factors”:

The respective ages of the parties to the marriage;
Their earning abilities;
The duration of the marriage;
The conduct of the parties during marriage;
Their station in life;
The circumstances and necessities of each;
Their health and physical conditions;
Their financial circumstances as shown by the property owned at the time;
Its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and
Such other matters as may be material.

In long term marriages, the courts generally look to a 50/50 division of assets and debts. However, the North Dakota Supreme Court has often said that a property division need not be equal to be equitable. If the court finds that a 50/50 split is not equitable, any substantial disparities from the court must be explained. Our Supreme Court regularly affirms disparate distributions of marital estates, and has carved out a number of commonly recognized reasons supporting such distributions, including:

Family assets: assets received by gift or inheritance from the family of one of the parties.
Premarital assets: assets owned by a party prior to marriage;
Waste: a party has frittered marital assets away;
Need: one party's needs outstrip the other’s.

How does the court handle spousal support claims?

There are two kinds of spousal support, permanent and temporary. Permanent support is most usually reserved for long-term marriages, and older spouses who have little, if any, earning capacity. They often involve marriages where one spouse is a high earner and the other is not. Temporary support is also known as “rehabilitative” support. It is intended to help a party bridge the gap between being in an economic partnership and being single and self-sustaining.

When deciding whether to award spousal support, North Dakota Court’s consider many circumstances, including:

The respective ages of the parties to the marriage;
Their earning abilities;
The duration of the marriage;
The conduct of the parties during marriage;
Their station in life;
The circumstances and necessities of each;
Their health and physical conditions;
Their financial circumstances as shown by the property owned at the time;
Its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and
Such other matters as may be material.

The distribution of the parties’ marital debts and assets connects with the spousal support issue. People who receive handsome estates in their divorce are less likely to receive spousal support

In divorces finalized after January 1, 2019, the person paying spousal support may no longer deduct the payments from their income tax. Likewise, spousal support recipients no longer pay taxes on those payments. In other words, spousal support payments are now paid with after-tax dollars.

Custody

What is “residential responsibility?”

Physical custody, which is labeled “residential responsibility” in North Dakota, depicts where the children physically reside most the time, and which parent(s) provide their daily care. There are a few different types of residential responsibility:

“Primary residential responsibility” describes a situation where the children live with one parent more than 50% of the time. Historically, courts have favored awarding one parent primary residential responsibility of the children and awarding the other parent “parenting time” (also known as visitation in some states) to maintain ongoing contact and a close relationship between both parents and the children.

“Joint residential responsibility” is a term used when children spend approximately 50%, or equal time with each parent. Both parents share the day-to-day care of the children. There is no presumption for or against joint residential responsibility, except in cases involving domestic violence. However, true joint residential responsibility arrangements are less common due to their potential to cause both personal and practical difficulties for children. Unless separating parents can effectively co-parent and communicate with one another, adopt similar parenting styles and daily routines for their children, and live relatively close to one another, shared residential responsibility arrangements are laden with risk.

“Split residential responsibility” is another, although much less favored, custody option. In split custody cases, one parent has primary residential responsibility of one or more of the parties’ children, and the other parent has primary residential responsibility of the other child(ren). Courts usually prefer not to separate siblings.

What is “decision-making responsibility?”

Legal custody, known as “decision-making responsibility” in North Dakota, defines which parent(s) are entitled to make important decisions regarding their children’s health, education, welfare, and upbringing. In most cases, parents agree to, and courts award, joint or shared decision-making responsibility. If decision-making responsibility is shared, the parenting plan must address a method of dispute resolution if the parents do not agree. For example, the parenting plan may state, if the parents do not agree, dad will decide. Or, it may say, if the parents do not agree, they will work with a third party (i.e. mediator) to resolve the dispute.

How are disputes regarding residential responsibility and decision-making responsibility resolved?

Residential responsibility and decision-making authority will be decided one or two ways: (1) by agreement between parents, or (2) by the Court. If parents are unable to agree on a parenting plan, and the Court must decide, the Court will evaluate the following factors to determine the best interests of the child:

The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

The moral fitness of the parents, as that fitness impacts the child.

The mental and physical health of the parents, as that health impacts the child.

The home, school, and community records of the child and the potential effect of any change.

If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

Evidence of domestic violence. In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, residential responsibility for a child may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards residential responsibility to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

The Court must make detailed findings on each of the factors above based upon the evidence presented and explain how each factor led to its conclusion and to the determination of custody.

I’m getting a divorce, and my spouse and I cannot agree on custody of our children. What do I do?

If your marriage is in trouble, and custody of your children may be an issue, keep the following things in mind:

At what age does the law allow a child to decide which parent to live with?

There is no specific age at which a child may decide which parent to live with. A child’s preference as it relates to primary residential responsibility is given more respect as the child’s age and maturity increases. As you’d expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Court’s seldom—but may—consider children age ten and under to have a sufficient maturity to express a residential responsibility preference. A child’s preference will be discounted if it appears “purchased” by a parent’s manipulations. Minnesota law gives an older teen’s residential responsibility preference much more priority and importance than does North Dakota.

Can a custodial parent move out of state with the kids?

Usually, but not always. A primary residential parent may not move from the state where the divorce was granted without the consent of (1) the other parent, or (2) the Court. In fact, a person moving the children without such consent may face civil contempt findings or criminal prosecution for depriving the other of parental contact. If the other parent will not consent to the move, you must ask the Court for permission. In North Dakota, the primary residential parent has the burden of showing the Court that the move will be in the children’s best interests. In doing so, the Court will consider:

The prospective advantages of the move in improving the custodial parents and children’s quality of life;
The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
The integrity of the noncustodial parent’s motives for opposing the move; and
Whether there is a realistic opportunity for parenting time, which can be an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternative parenting time.

Courts usually grant “move motions” but, in doing so, also restructure parenting time rights to accommodate the non-moving parent.

Do you have tools to help us understand, remember, and visualize a parenting schedule?

Yes. Our office uses “Custody X Change” software. Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable. Accordingly, we can provide our clients a color-coded calendar for the entire year—or beyond—showing when the children will be with each parent. The calendar includes start and end times for regular, holiday, and summer parenting times. Each parent can simply post the calendar on their fridge and both will know exactly when the children should be with them. The calendar can also be used as a journal to record parenting time events, good or bad, as they occur. Our fee for providing this service is quite reasonable.

The other parent and I can’t be in each other’s presence. How do we transfer our kids from one parent to the other?

You may want to consider utilizing a safe exchange center for your parenting time exchanges. Rainbow Bridge Safe Exchange/Visitation Center offers a positive, safe, child friendly, and neutral site where children and parents can be assured that a supervised parenting time or exchange will be safe and conflict free. Rainbow Bridge is located at 715 North 11^th Street, Suite 101, Moorhead, Minnesota. There are other safe exchange locations available throughout the state.

Do moms always get residential responsibility of the children?

No, they don’t. It may be true that moms end up with primary residential responsibility of children more often than dads, but not because of judicial bias in favor of moms. North Dakota’s legislature has said, “between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.” N.D.C.C. §14-09-06.1. North Dakota’s Supreme Court agrees, stating, “the public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child.” McDowell v. McDowell, 2003 ND 174. Our office has helped many fathers obtain primary residential responsibility of children. We believe the words of the legislature and Supreme Court are not empty, but are practiced and applied by North Dakota trial courts. In parenting time disputes, the better parent is awarded residential responsibility, regardless of gender.

Can grandparents obtain a Court Order allowing them to spend time with their grandchildren?

Yes, but it is hard. Grandparents can obtain a Court Order allowing reasonable parenting time with grandchildren. The grandparents have a difficult burden of proof, though. They must prove that visitation: (1) will be in the best interests of the children; and (2) will not interfere with the relationship between the children and their parents. The Courts generally believe that children benefit from a relationship with extended family members.

Can anyone, other than a parent, get custody of my child?

Parents have a constitutional right to the custody and companionship of their children, superior to that of any other person. That right, however, is not absolute. In custody disputes between a natural parent and a third party “exceptional circumstances” may require, in the child’s best interests to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. Third party custody claims are very rare and are often unsuccessful.

The North Dakota legislature and North Dakota Supreme Court has not attempted to define the “exceptional circumstances” which must exist to permit a court to consider placing custody of a child with a third party rather than with the natural parent. However, each case (albeit rare) in which such a placement has been upheld has involved a child who has been in the actual physical custody of the third party for a sufficient period of time to develop a “psychological parent” relationship with that third party.

I am not happy with the current parenting plan and custodial arrangement involving my children. Can residential responsibility be changed?

A request to modify primary residential responsibility cannot be made within two years of an order establishing residential responsibility unless: (1) the parties agree to the modification; (2) there is persistent and willful denial or interference with visitation; (3) the child’s present environment endangers the child’s physical or emotional health and development; or (4) the primary physical care of the child has changed to the other parent for longer than six months.

After two years of an order establishing residential responsibility, the Court may modify the primary residential responsibility if it finds: (1) on the basis of facts that have arisen since the prior order, or which were unknown at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and (2) the modification is necessary to serve the best interests of the child.

A parent seeking to change custody has the burden of proof.

How should I tell the children about the divorce?

Divorce represents a major upheaval for your entire family, including your children. You can help your kids through this process by creating a game plan of how and when to discuss your divorce with your children. In many cases, it is a good idea to reach out to a child therapist for guidance before you discuss your divorce.

Although you and your spouse may be at odds during your divorce, it is critical to your children’s well-being that you present as a unified front when you do talk to your children. Once you’ve decided to discuss your divorce plans with your kids, make sure you’ve picked a neutral time and location for the meeting. It is best to be honest with your kids, without going into too many unnecessary details. It is also very important to assure your children that both parents love them, and that love won’t go away.

Your children may take the news hard, or in stride. Your kids may struggle with the fact their lives will never be the same. You can help your children by fostering their relationship with the other parent. A parent’s biggest mistake in a divorce is putting the kids in the middle of their own emotional battle. Keep your kids out of your arguments with your spouse. No good can come of highlighting the bad qualities of your child’s other parent.

Parenting Time (Visitation)

What are the North Dakota Best Interest Factors the courts analyze when making parenting time determinations?

What is an example of a “boilerplate” schedule the Court may award if my ex-partner and I cannot agree on one?

Alternating weekends with the non-primary parent from Friday evening to Sunday evening.
One evening visit per week with the non-primary parent (generally not an overnight visit).
Alternating holiday schedule including New Year's Day, Easter Weekend, Memorial Day Weekend, 4^th of July Weekend, Thanksgiving Day or Weekend, half of the Christmas holiday.
Extended Summer Visitation ranging anywhere from one week to six weeks with the non-primary parent.

Do you use any tools that can help me, my kids, and their other parent better remember our parenting schedule?

Our office uses special calendaring software. Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable. Accordingly, we can now provide our clients a color-coded calendar for the entire year (or beyond) showing when the children will be with each parent. The calendar includes start and end times for regular holiday and summer parenting times. Each parent can simply post the calendar on his or her fridge and both will know exactly when the children will be with mom and when they will be with dad. The calendar can also be used as a journal to record parenting time events, good or bad, as they occur. Our fee for providing this service is quite reasonable.

What solutions are there when parents have conflict when transferring kids back and forth?

One idea is to structure a parenting time schedule requiring exchanges to occur at natural transition points during the day, such as having the other parent pick up the children from school or daycare, rather than from your home. Another is to use Rainbow Bridge Safe Exchange/Visitation Center, which offers a positive, safe, child friendly and neutral site where children and parents can be assured a supervised visitation or exchange will be safe and conflict free. All services provided by Rainbow Bridge are confidential. Rainbow Bridge is located at 715 North 11th Street, Suite 101, in Moorhead, Minnesota. You can reach Rainbow Bridge at (218) 299-7694 or 1 (800) 452-3646, ext. 7694.

Our family’s circumstances have changed since the court’s original decision. Can our parenting time schedule be changed, too?

Yes! Court orders can be changed either through a Judge’s order or by the parties’ agreement. Courts will modify parenting plans if the moving party can demonstrate a change of circumstances since entry of the last order, and if a change is in the child’s best interests.

My ex denies me my parenting time. Is there any way I can make this time up? Can my ex get in trouble for denying my time?

Most likely, yes! A parent wrongfully deprived of their parenting time will sometimes be awarded “compensatory” (make up) time. In addition, a parent who wrongfully obstructs the other’s parenting time can be found “in contempt” and be punished for it. It is very important to document your attempts to exercise your parenting time to prove the denied time (e.g. text messages or emails).

Can grandparents obtain a Court Order allowing them to spend time with their grandchildren?

Yes. Sometimes. Both North Dakota and Minnesota allow grandparents to obtain a Court Order allowing reasonable visitation with grandchildren. The grandparents do have a burden of proof, though. The grandparents must prove that visitation (1) will be in the best interests of the children and (2) will not interfere with the relationship between the children and their parents. The Courts generally believe that children benefit from a relationship with extended family members. Accordingly, they are usually receptive to a grandparent's request for visitation.

Child Support

How is child support calculated?

A child support obligation is determined using a formula, as follows:

Payee’s gross wages (w2’s, 1099s, retirement benefits, etc.)
- Standard income tax deduction ($6,300)
- Dependency exemptions (if any) ($4,050 for self, $4,050 per dependent claimed)
= Taxable income

Taxable income (found on the current IRS tax tables)
- Child tax credit (if any) ($1,000 per dependent claimed)
= Total federal tax

Federal tax
+ State tax (federal tax multiplied by 14%)
+ FICA (gross wages multiplied by 7.65%, in most cases)
+ health insurance for children (if any)
+ dental insurance for children (if any)
+ union fees, or other required employment expenses (rare)
= Total amount deducted from your gross wages

Net income (total deductions minus gross income)
Net monthly income

Child support amounts are listed in the North Dakota Administrative Code based upon the payee’s net monthly income and the number of children receiving support. There is a calculator available online to assist you.

What are “gross wages” for child support purposes?

Gross income includes:

salaries, wages, overtime wages, commissions, bonuses, employee benefits, currently deferred income, dividends, severance pay, pensions, interest trust income, annuities income, gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, distributions of retirement benefits, veterans benefits, gifts and prizes exceeding $1000, in-kind income received on a regular basis, spousal support, refundable tax credits, children’s benefits, military subsistence payments, and net-income from self-employment.

Does the child support formula use both parents’ income to calculate child support?

Not unless you have “equal residential responsibility” and “equal parenting time.” In North Dakota, equal means exactly 50% parenting time.

When parents share 50% parenting time, they owe a child support obligation to each other. There is usually an offsetting child support obligation. For instance, if dad’s child support is $500 and mom’s child support is $250, then dad will pay mom $250 a month for child support. In some instances, the child support obligations are equal and there is no offset amount.

My ex-boyfriend is unemployed. Does that mean he won’t be ordered to pay child support?

No. For child support purposes, it is presumed that anyone can work at least 40 hours a week for minimum wage. Also, your ex-boyfriend’s prior work history and wages will be considered. This is called “imputing” wages. There are many variables to consider. It would be best to speak with an attorney to make sure his child support is calculated properly.

I have heard the term “underemployment” before, but I don’t know what it means.

A person is considered underemployed for child support purposes under two circumstances:

He or she is earning 60% of the statewide average wage for the same position, or;
He or she is earning less than 167 times the federal minimum wage (or $1,200 monthly).

When a person is underemployed, gross wages will be imputed to him or her. This is another circumstance where it is best to work with an attorney to ensure the child support amount is calculated properly.

I’m self-employed, and my income fluctuates each year. How is my gross income determined?

If you are self-employed it can be difficult to determine what your gross wages were for the year. Whether you are working with an attorney or through the child support unit, you should be prepared to turn over your previous five years’ tax returns, including all the schedules and worksheets. Some of the income you deducted for income tax purposes, is not deductible for child support purposes.

If your income fluctuates each year, your gross income will be determined by averaging your income over either a three or five-year period.

How long do I have to pay child support?

A child support order in North Dakota terminates under various circumstances, including:

When your child turns 18 or through the month in which your child graduates from high school;
When your child turns 19, if they are still enrolled in high school and living with the other parent;
When your child gets married;
When your child joins the armed services, or;
When your child is legally emancipated.

I have three children. My daughter is graduating high school this year. Will my child support automatically go down when she graduates?

Not necessarily. Because you have more than one child, it is important for your child support order to use a “step-down” approach. For example, your order should say something like the following,

John shall pay to Jane $1,200 per month for the support of three children. When only two children are eligible for child support, John shall pay to Jane $900 per month for the support of two children. When only one child is eligible for child support, John shall pay to Jane $500 per month for the support of one child.

If your order includes this language, the child support unit will send the other parent an affidavit to sign and return. Your child support should change automatically.

If, however, your order does not include this language, you should meet with an attorney right away. You will need to modify your Judgment to include the “step-down” and modify your child support.

Where do I send my support payments? Do I pay my ex directly?

All child support payments are paid through the child support system. Unless you are self-employed, your wages are subject to wage withholding. The child support system will ask you to complete a form, and they will send a wage withholding order to your employer.

If you are self-employed, you will mail your support payments directly to the child support unit at State Disbursement Unit, P.O. Box 7280, Bismarck, ND 58507-7280.

Do not pay child support directly to your ex. If you do, make sure to tell your attorney right away. If you don’t have an attorney, you need to contact the child support unit. In most cases, they will give you credit for the support you have already paid (make sure you keep good records). However, if you continue to pay your child support directly, you will not receive credit in the future.

What information should I give to the child support unit?

You will need to give the child support unit your social security number, mailing address, telephone number, driver’s license number, and your employer’s name and contact information. You need to contact the child support unit if any of your information changes.

What is the lien registry?

North Dakota law requires the Child Support Enforcement Unit to maintain a child support lien registry. It is a list of obligors who owe past-due child support. The registry is a public site that may be searched by anyone.

I get along well with my ex-boyfriend. We earn close to the same income, and I really don’t want him to pay child support. Can I waive child support?

No. Child support can’t be waived. In the law’s view, the support is the children’s money and a parent has no legal power to waive payment.

My ex-girlfriend said I can give her $500 a month for my child, but when her attorney calculated my child support it was twice that amount. I can’t afford that. Can’t we just agree to an amount of support?

No. The law requires that all child support orders be calculated using the same formula. However, there are some exceptions. If you are concerned, you should meet with an attorney to determine if any of the exceptions apply in your situation.

I pay a lot of child support each month. I just want to know what it’s supposed to cover.

Child support covers the basic costs to care for your child, which include things such as, shelter, food, clothes, school supplies, lunches, daycare or afterschool costs, and extra-curricular activities.

My ex-husband has a lot of child support arrearages. Our kids are grown, and I don’t want anything from him. Can I waive his old child support arrearages?

In most cases, yes you can. So long as you didn’t receive benefits from the State you shouldn’t have a problem waiving these arrearages. You should contact the child support unit for assistance.

Our child has special needs. His medical expenses are very high each month. I’m afraid that my husband’s child support obligation won’t be enough to cover his expenses. Do the rules consider special circumstances?

Yes. The rules have built in exceptions called “deviations.” If your circumstances meet the requirements, child support can be deviated up or down. Some common reasons to deviate include: daycare costs, chronic illness, age of the children, and costs for transportation when visiting a child.

I have a child support order, but I’m struggling to pay it each month. Can my child support be modified?

Yes. You can request the court to modify your child support. You don’t need to have an attorney do this for you (but it would help). Various factors are considered by the court when modifying a child support order. This becomes more complicated if the other parent doesn’t agree with your request.

If you haven’t modified your child support for at least three years, you can contact the child support unit. They will send documents to both parents, then conduct a review. This is a free service, but they generally only recommend a modification when there will be a 15% increase or decrease in the child support obligation.

Under rare circumstances, you can request a modification within less than a year of your current order. In this situation, you should have an attorney assist you.

Can my child support order be back-dated?

Yes. This can happen for several reasons. Here are three example scenarios:

Paternity: A child is born to unmarried parents, who split up before child’s birth. Mom signs up for public assistance. The State, which is paying that assistance, wants to assure that the child is being fully supported by its parents rather than tax payers. It sues dad to establish his paternity (legal relationship to the child) and a guideline child support obligation. A back-support obligation can be imposed to the child’s birth.

Divorce Separation: Husband and Wife separate. Children live primarily with one parent. Months pass and the other parent doesn’t financially help the parent the kids live with. A back-support obligation can be imposed to the date of separation.

Modification Motions: A support modification motion is started in February, but the hearing on that motion takes place in May. A back-support obligation can be imposed to the date the motion began.

My ex-girlfriend is supposed to pay me child support each month. She hasn’t paid in six months. Can I start withholding her parenting time?

No. It is never a good idea to withhold court ordered parenting time. The best approach is to start a contempt action against her. The court will help.

Paternity

Acknowledged, adjudicated, alleged, presumed...what do they all mean?

“Acknowledged father” means a man who has established his paternity by signing an acknowledgement of paternity form, which is also signed by the mother, and filed with the state department of health as a formal record.

“Adjudicated father” means a man who has been declared to be a father by the court.

“Alleged father” means a mean who claims to be, or who is alleged to be, a possible genetic father of a child.

“Presumed father” means a man who is recognized as a father by operation of law, unless that status is changed via a judicial proceeding. In North Dakota, a man is presumed to be the father of a child if:

He and the child’s mother are married (or attempted to marry in compliance with the law), and the child was born during the marriage, or within 300 days after the marriage terminated;
After the child was born, he married the mother and voluntarily asserted his paternity in a record filed with the state, he is named on the child’s birth certificate, and he promised to support the child as his own; or
For the first two years of the child’s life, the man lived with the child and openly held the child out as his own.

Is a court order the only way to establish paternity?

No. A properly executed acknowledgment of paternity form is the equivalent of a judicial adjudication of paternity, unless and until it is challenged. Also, a father-child relationship is established, for all intents and purposes, if a presumed father remains unchallenged. In either circumstance, such a father is granted all the rights and duties of a parent, just like the mother, including the obligation to financially support his child.

What if there was a mistake on the acknowledgment form?

Any party who signs an acknowledgment of paternity may rescind it within 60 days or the date of the first court hearing related to the child, whichever is earlier.

Otherwise, an acknowledgment may only be challenged within one year after it is filed, based on fraud, duress, or material mistake of fact.

I’m not married to my child’s mother. Do I have to go to court to get any rights?

If you’ve executed a valid acknowledgment of paternity, or no one has taken any action to rebut the presumption that you are a child’s father, a parent-child relationship has been established. You have all the rights and duties of a parent. However, the only way to establish a formal parenting plan or parenting time schedule is to seek the court’s assistance.

The State commenced a paternity action to start a child support obligation. Will the State help me establish residential responsibility (custody) and parenting time (visitation) rights, too?

No. The State does not represent either parent and takes no position regarding the residential responsibility and parenting time rights that would be in a child’s best interests. The State’s interest is solely in establishing paternity and securing payments for support of the child.

I’m not sure if I am the biological father. Can I get a genetic test?

Yes. The court has the authority to require a child and any alleged father to submit to genetic testing to determine whether that person is a parent. However, the court will not order in utero testing. Genetic testing usually requires a simple, non-invasive blood or hair sample test. In North Dakota, a man is identified as the father if genetic testing reveals at least a 99% probability of paternity. The court has the authority to decide who will pay for genetic testing.

If an alleged father simply wishes to admit to the paternity of a child, rather than submit to formal genetic testing, that is also authorized under North Dakota law.

What if I didn’t know I might be a father? Are there time-frames I need to worry about?

If a child has no presumed, acknowledged, or adjudicated father, an action to determine parentage may be brought at any time, even after the child is already an adult. Otherwise, yes, there are time limitations that apply in other circumstances.

If a child has a presumed father, an action to adjudicate paternity must be brought within two years of the child’s birth.

If a child has an acknowledged father, an action to adjudicate paternity must be brought within two years of the effective date of the acknowledgment form.

Can I do anything before the child is born?

Yes. An interested party, like the mother, any alleged father, or a child support enforcement agency, may start a paternity proceeding before the birth of a child. Parties can be required to share necessary information and provide specimens for genetic testing before the child is born. However, in utero genetic testing of the baby is not allowed, and any paternity action cannot be concluded until after the child arrives.

So, I’ve been adjudicated to be a father. What happens next?

An adjudication of paternity is the basis for the court to make other decisions regarding the involved child, like changing the child’s name, ordering the state department of health to issue an amended birth certificate, determining residential responsibility (custody) and parenting time (visitation), imposing a child support obligation, and ordering medical insurance coverage.

Also, unless the court includes a specific restriction or exclusion in an order, an adjudicated father of a child has the following rights under North Dakota law:

To access and obtain important records of the child, such as school, medical, and religious records;
To attend the child’s educational conferences;
To have reasonable access to the child through phone, email, or other written means;
To be informed if the child suffers a serious accident or injury;
To be informed of the child’s home address and phone number;
To be notified of the school the child attends.

Adoption

Who can be adopted?

Any person, regardless of age, may be adopted in North Dakota.

Who may adopt?

Generally, a husband and wife, unmarried adult, the unmarried father or mother of the person to be adopted, and the stepparent of a child may petition a court to adopt.

Who needs to consent to an adoption?

In identified and stepparent adoptions, the biological parents must consent to the adoption. In adult adoptions, the spouse of the adult must consent. In agency adoptions, parental rights are terminated separately and the entity with custody of the child (i.e. the State) must consent. A minor over the age of 10 may also need to consent, unless the Court waives that need after considering the child’s best interests.

What happens if I can’t find my child’s biological parent and he/she has not been involved in our child’s life?

North Dakota allows adoptions to be entered if there is clear and convincing evidence of abandonment. Each case is different and there are various options where consent is not required. It is best to discuss individual facts with the attorney.

What happens when a biological parent consents to the adoption?

The rights of the biological parent that consents to an adoption are terminated. In stepparent adoption cases, the termination relates only to the noncustodial parent.

Can a biological parent withdraw his or her consent and, if so, when?

A consent can only be withdrawn if it is found to be in the child’s best interests after a hearing. No consent may be withdrawn after the decree is entered.

Do I need to go through an agency for my adoption?

A licensed adoption agency is necessary for identified and agency adoptions. The adoption agency must provide various reports to the court. Adoption agencies are not required for stepparent and most intrafamily adoptions.

I know someone who is pregnant and wants to give the child up for adoption to me. How do I go about that?

This is an identified adoption. A pre-adoptive placement study is the first step, followed by a relinquishment of custody and placement of the child prior to the adoption. After a time, normally six months, the Adoption Petition will be filed and heard by a court.

We are the foster parents of a child and have been approved for adoption. Does your office handle those cases?

Gjesdahl Law handles these agency adoptions on a regular basis and works with the various agencies in the area to ensure that the process moves along smoothly for your new family.

What is the Indian Child Welfare Act (ICWA)?

ICWA is a federal law that gives a placement preference to the various Native American tribes if the child to be adopted is eligible for enrollment with a tribe.

How does ICWA affect adoptions?

If a child is eligible to be adopted, based upon the tribe’s eligibility requirements, the tribe may intervene and request placement with a tribal member or member of the child’s family. ICWA applies to all agency and identified adoptions. It may apply in some stepparent adoptions as well if one of the biological parents is a Native American and fits in the ICWA definitions for consideration.

What is a Putative or Adoptive Fathers’ Registry?

Some states have a registry that allows a possible father interested in a minor child who is or is expected to adopted to register a receive notice of the adoption before it can be granted.

Does North Dakota have a Putative Father’s Registry?

No, North Dakota does not have an Adoptive or Putative Father’s Registry.

Once all the paperwork is filed, what are the final adoption steps?

A hearing is held before the district court judge to finalize the adoption. This is normally a joyous occasion and we encourage friends and families to attend. You may also bring a camera to take pictures. Once the Adoption Decree is entered and signed, you will receive a certified copy of the Decree and a new birth certificate will be issued to you by the proper state.

Collaborative Negotiation

What is Collaborative Law?

Collaborative law is a dispute resolution process that allows divorcing couples to work with lawyers and other professionals to settle their disputes outside of the courtroom. Central tenets of the collaborative process include:

A promise to reach a resolution without court intervention or the threat of court intervention.
A pledge that if either party seeks court intervention both attorneys must withdraw from representation.
A promise by all participants to negotiate in good faith by remaining transparent, flexible, disclosing all pertinent information, and using constructive and respectful communication methods.

How does the collaborative divorce process work?

The collaborative process does not rely on court-imposed solutions. Instead, the parties work with a team of professionals to avoid the uncertain outcomes of court litigation. The end goal is to achieve a settlement that best meets the specific needs of both parties and their family as a whole.

Focusing on interest-based—rather than position-based—negotiating, the collaborative process offers a healthier and more effective forum for the resolution of a couple’s divorce issues.

What is the Collaborative Team?

Professionals involved in the collaborative process work together as a team instead of as adversaries. A collaborative team can be any combination of professionals the parties choose to work with to resolve their issues. The attorneys can help the clients decide which professionals are best suited to their needs. The professionals typically come from three disciplines: child psychology, mental health, and finance.

Is the Collaborative Process Faster?

The collaborative process is almost invariably faster than the traditional divorce process. It can take well over a year to process a divorce on the traditional litigation path. You wait on your lawyer. You wait on your spouse’s lawyer. You wait on the Judge’s calendar and, ultimately, for their ruling. Collaborative divorces are more likely to go at your speed than others.

Is the Collaborative Process Less Expensive?

The parties’ promises and pledges to reach a resolution without the need for court intervention drastically reduce the threat of fees getting out of control. If your divorce goes to trial, between you and your spouse, there’s a good chance you’ll each spend $50,000 or more on your lawyers. On top of that, you may pay accountants, appraisers, psychologists, mediators, and other spendy experts, too.

Using the collaborative divorce process, the parties maintain far more control over the money they spend processing their case. Instead of both parties’ hiring their own appraisers and experts, they will typically share the expense of common appraisers and experts.

How is the Collaborative Process Different from the Traditional Divorce Process?

In summary:

It’s nicer;
It aims to eliminate the negative economic, social, and emotional consequences of litigation;
It focuses on the parties’ well-being and the future well-being of their children;
It allows the parties to have more control;
It’s faster, cheaper, and more private;
It’s transparent;
It employs interest-based negotiation (i.e. “you and me vs. the problem” instead of “you vs. me”

How does Collaborative Divorce Differ from Mediation?

Collaborative divorce is one in which the divorcing couple and their respective attorneys agree to dissolve the marriage and resolve conflicts by using cooperative techniques rather than an adversarial approach. In fact, all parties and their lawyers sign an agreement to keep the proceedings confidential and not seek litigation; in other words, the case will not go to court no matter what.

The attorneys in a collaborative divorce are specially trained in negotiation and managing conflict. In this case, lawyers act more as “chauffeurs” helping to get you to your destination safely.

Mediation is another form of alternative dispute resolution where a neutral third person–a mediator– helps the divorcing couple to work through the issues of their divorce and arrive at a mutually satisfactory settlement. The mediator, a professional who may or may not be an attorney, doesn’t take sides but acts as a facilitator as the couple decides the best way to resolve thorny issues, such as child custody or spousal support.

What if I don’t get along with my spouse?

It takes two willing participants for a collaborative divorce to work. If your spouse is reluctant, mediation and negotiations may be fruitless. Collaborative divorce is not just for couples who agree on most issues, but for those who are determined to get through the divorce process as amicably as possible. That said, the collaborative process is not right for everyone. Parties who make good candidates for the collaborative approach usually share these common goals:

We want to resolve our differences in the best interests of our children;
We want to eliminate the negative economic, social, and emotional consequences of litigation;
We want to find solutions that are acceptable to both of us;
We commit ourselves to settling this case without going to court; and
We will be honest, cooperative, respectful, and transparent throughout the entire process.

How will this process affect my children?

Collaborative divorce can provide benefits to children that are often unavailable if parents choose a more adversarial approach. There is no question that divorces can be difficult on children and can have long-lasting impacts well into adulthood. The Collaborative process can promote a healthier family transition. Family relationships can be reshaped instead of destroyed.

By signing the collaborative agreement at the forefront of their divorce, parties mutually agree to:

Act quickly to resolve differences related to their children;
Promote a caring, loving, and involved relationship between the children and each parent;
Work for the best interests of the family as a whole;
Not to involve the children in their differences; and
Acknowledge that inappropriate communications regarding the divorce can be harmful to the children. Communication with the children regarding the divorce will occur only if it is appropriate and done by mutual agreement or with the advice of a child specialist.

Will I still have to go to court?

The defining characteristic of collaborative divorce is that the parties and attorneys all agree not to go to court. Your final agreement is filed in court, but neither you nor your attorneys will need to appear in court. No paperwork is served or filed with the court until you have completed your final agreement, so there are no scheduling conferences, court appearances, or hearings.

However, if you are unable to reach a settlement and want to take the litigation route instead, you will have to start the process from the beginning—including finding a new lawyer. Collaborative divorce lawyers will not represent their collaboration clients in subsequent litigation proceedings.

How do I contact a collaborative professional in my area?

Either contact Gjesdahl Law or visit the North Dakota Collaborative Divorce Group website to find a collaborative professional in North Dakota and/or northwestern Minnesota.

What is Collaborative Negotiating?

Collaborative Negotiation is a non-litigation approach where two parties and each of their lawyers try to settle their dispute without involving a court.

Assisted Reproduction

What are some situations where ART is involved?

There are many, including (but not limited to):

Heterosexual couple, both with viable genetic material, but female is unable to carry the embryo and sustain pregnancy full term. Her egg is fertilized in vitro with his sperm, and the embryo is transferred to a gestational surrogate.

Heterosexual couple, using donated sperm and donated egg. Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Heterosexual couple, using donated sperm or donated egg, but sperm or egg from one member of the couple. Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Homosexual couple, typically using one’s sperm or egg, paired with donated egg or sperm (often donated by the other’s family member).

Who is involved in an ART arrangement?

The usual interested participants usually include:

Intended parents: Normally husband and wife, but not always.

Gestational Carrier: The woman who agrees to carry the intended parent’s child and if married, her spouse.

Attorneys: Most times, an attorney represents the couple, and a separate attorney represents the Gestational Carrier. Sometimes, an attorney represents just one party, and the other party is unrepresented. Sometimes, we work with an attorney at the hospital.

Doctors: A doctor collects the sperm and removes the eggs. A doctor creates the embryos and implants them into the Gestational Carrier. A doctor guides the Gestational Carrier through the pregnancy. A doctor delivers the child. Many different doctors will be involved in a Gestational Carrier Agreement.

Agencies: We normally work with the hospital to ensure they have all necessary documents. We also normally work with the Department of Vital Statistics to assure the intended parents are identified on the child’s birth certificate.

What’s the difference between a Gestational Carrier and a Surrogate?

A Surrogate uses her own egg to conceive the pregnancy. A Gestational Carrier does not. The Gestational Carrier provides a host uterus and carries a child for the Intended Parents. The surrogate provides host uterus, carries the child, and provides the egg.

Legally, using a traditional surrogate involves tremendous risk. There can be no doubt that the surrogate is the child’s biological mother, which gives both her and her husband substantial legal footing to start from should they renege on an agreement to carry a child for others. Some states deem traditional surrogacy agreements to be void. Most lawyers won’t become involved with them.

Gestational carrier arrangements are much safer. Still, not all states bless them and, in fact, many have generated no law that addresses them.

Does North Dakota law address gestational carrier and surrogacy arrangements?

Yes. North Dakota statutes approve of gestational carrier agreements where the intended parents are married and using “an egg of a wife” and “her husband’s sperm.” All other agreements are deemed “surrogacy” and, thus, “void.”

The reference in North Dakota’s statutes to “wife” and “husband” could be interpreted to exclude homosexual couples from using gestational carriers. The U.S. Supreme Court case of Obergfell v. Hodges, however, does not permit such an interpretation.

Likewise, there’s a concern that “egg of a wife” and “husband’s sperm” would leave people out, too. What if a heterosexual couple don’t have both viable eggs and sperm, of their own bodies? Again, what about homosexual couples. Again, there is solace and protection to be found in the Obergfell case. In addition, isn’t a donated egg, purchased by wife, the “egg of a wife”?

In actual practice, to date, our firm has not encountered difficulty with gestational carrier agreements involving gay couples or donated genetic material.

Describe the gestational carrier process?

The first step is to identify a gestational carrier. Most of the time, the intended parents have identified a person that is willing to serve as a gestational carrier. If not, there are organizations that can help you locate a gestational carrier.

The next step is to negotiate and draft the Gestational Carrier Agreement (GCA). The gestational carrier Agreement defines and regulates the rights and obligations between the intended parents and the gestational carrier.

After the GCA is signed, the doctors take over. They will obtain the sperm and egg, create the embryo, implant it, and diagnose the pregnancy.

Around mid-pregnancy, an attorney will draft the documents necessary to obtain a pre-birth order from the Court. The pre-birth order makes it clear that the child is the intended parents’, not the gestational carrier’s.

The finalized pre-birth order is sent to the hospital, the intended parents, the gestational carrier, and the Department of Vital Statistics.

After the baby is born, the intended parents are identified as the child’s parents on all documents (most importantly, the birth certificate).

How much is a Gestational Carrier paid?

The payments vary. Some gestational carrier arrangements are “commercial” and the carrier is compensated. A usual fee is anywhere from $15,000 to $30,000. Normally the payments are spread out evenly through the pregnancy. There may be additional payments tied to certain events as well. Payments are often made in advance, to an escrow fund, so the carrier is assured she will be paid.

Other agreements are “altruistic,” usually involving a helpful family member or friend who requires no payment).

What are some non-birth issues normally addressed in a Gestational Carrier Agreement?

Will the Gestational Carrier be compensated? If so, how much? At what intervals? Will payments be escrowed in advance?

Who will pay for incidental expenses for the carrier (e,g., maternity clothes, lost work time)?

Is there medical coverage in place? Who will pay for the carrier’s uninsured expenses?

What medical providers and whose screening protocols will be used?

How many in vitro fertilization transfers will be attempted?

To what extent will each party waive medical confidentiality rights to provide the other needed assurance and the right to participate in the gestational process?

How will “reduction” issues be handled?

The Gestational Carrier Agreement addresses all these issues, and more.

What are some birth related issues addressed in a Gestational Carrier Agreement?

Who has the right to name the child?

Whose names are on the birth certificate as the child’s parents?

Who is financially responsible for the child’s medical expenses?

Who can be present at the child’s birth?

Who makes circumcision and other medical decisions for the child?

The Gestational Carrier Agreement addresses all these issues, and more.

Why do you need a pre-birth order?

It is wise to sign a Gestational Carrier Agreement before implanting the embryo and to obtain a “Pre-Birth Order” from a court well before the child is born. With a pre-birth order in hand, everyone—the intended parents, the Gestational Carrier, her husband, and the medical providers—can all proceed with more confidence. A pre-birth order is an order from a judge declaring that the baby is the intended parents’ child.

Unfortunately, even those states with laws allowing gestational carrier arrangements usually do not provide a process for obtaining a pre-birth order. North Dakota statutes, for example, do not mention, or provide for, pre-birth orders. Accordingly, the lawyer often ends up explaining an unfamiliar legal process, involving important rights and obligations, to a judge unfamiliar with it all.

Thankfully, judges normally agree: Granting a pre-birth order is a wise and helpful decision.

What if a judge won’t grant a pre-birth order?

In those rare instances where a judge refuses to grant parties a pre-birth order, there are other avenues to legally establish the parent-child relationship between the intended parents and the child.

Even without a pre-birth order, North Dakota’s Division of Vital Statistics will normally provide a birth certificate identifying the intended parents as the child’s only parents. It needs to be provided three documents: (1) the Gestational Carrier Agreement; (2) a letter from the lawyer who drafted the agreement; and (3) a letter from the doctor who performed the in vitro fertilization process and confirmed the resulting pregnancy.

What if Vital Statistics won’t identify the intended parents as the child’s parents on a birth certificate?

A third approach that leads to the same result—legally establishing a parent-child relationship between the child and the intended parents—is a traditional adoption. Every Gestational Carrier Agreement provides that the carrier and her husband consent to an adoption by the intended parents, and will cooperate with that process. This approach, however, takes longer (several months) and costs more.

Whichever legal route is followed to establish the intended parents’ legal relationship, all concerned will want to make the medical providers—including the hospital where the child will be born—aware of the gestational carrier arrangement well before the child is born. The hospital will handle its part better if its personnel are not surprised, at the last minute, with news of the gestational carrier arrangement.

What if I am gay? Can my spouse and I be intended parents?

The answer is “Probably.”

In North Dakota, the language in the statue mentions “husband” and “wife.” However, our constitution requires that same-sex couples receive equal rights as heterosexual couples. Since same-sex couples can get married in the United States, the terms “husband” and “wife” are outdated terms gender references.

Do the sperm and egg need to come genetically from the intended parent?

The answer is “probably not.”

The language in North Dakota suggests that the sperm and egg are, biologically, the intended parents’.

However, another fair interpretation is that the statute just requires “ownership” or “possession” of the sperm and egg. Under this interpretation, the egg and sperm could come from a donor, so long as the intended parents own and possess the sperm and egg.

What if we aren’t married? Or what if I want to do this alone?

There may be a higher risk involved.

The North Dakota statute mentions “husband and wife.” It also mentions “Intended Parents,” strongly evidencing a legislative favoring of married as opposed to unmarried or single “intended parents.”

We’d expect courts to have fewer concerns about a married gay couple than an unmarried gay couple or a singleton parent; and also to have fewer concerns about married as opposed to unmarried straight couples or singletons.

On the other hand, North Dakota statutes don’t expressly prohibit singles from being an intended parent; and its adoption statutes actually permit adoptions by singles.

The gestational carrier and intended parents live in separate states. Where should we seek the pre-birth order?

The state in which the gestational carrier lives (and the where the child is born) is probably the best place to seek the pre-birth order. That’s the state that will be responsible for issuing the child’s birth certificate.

Can one attorney represent both the intended parents and the gestational carrier (and her husband)?

No. The intended parents and the gestational carrier have different and separate interests. It’d be a classic conflict of interest, and inappropriate, for one attorney to represent both sets of interests.

If an attorney represents the gestational carrier, and a separate attorney represents the intended parents, both attorneys should be licensed in the state where the Gestational Carrier Agreement is negotiated and a pre-birth order is issued.

Protection Orders

Which Court issues which Order?

Domestic Violence Protection Order (DVPO)

DVPOs are issued by District Court in Family or Domestic Law cases.

Disorderly Conduct Restraining Order (DCRO)

DCROs are a civil action and are issued by the District Court.

Criminal No Contact Order (NCO)

NCOs are issued as part of a criminal action and issued in relation to a crime.

What must I show to get an Order?

Domestic Violence Protection Order (DVPO)

DVPOs require an allegation and showing of domestic violence. Domestic Violence is physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of imminent physical harm, bodily injury, sexual activity compelled by force, and assault not committed in self-defense.

Disorderly Conduct Restraining Order (DCRO)

DCROs require a showing of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Human trafficking also falls under this definition. However, constitutionally protected activity is not considered “disorderly conduct.”

Criminal No Contact Order (NCO)

NCOs are issued in conjunction with criminal actions when a person is charged with or arrested for a crime of violence or threat of violence, stalking, harassment, or a sex offense and will be released from custody before arraignment or trial.

Does it matter who is abusing or harassing me?

Domestic Violence Protection Order (DVPO)

Because a DVPO requires a showing of domestic violence, you must have a familial relationship to the perpetrator. A family relationship includes spouses and former spouses, parents and children, persons who have resided together in the past, persons related by blood, persons who have a child together regardless of marital status, and any other definition that the court finds sufficient to warrant the issuance of a DVPO.

Disorderly Conduct Restraining Order (DCRO)

DCROs do not require a relationship with the preparator. Any person that commits unwanted and qualifying acts may be subject to restrictions under a DCRO.

Criminal No Contact Order (NCO)

Because a NCO is part of a criminal action, the individual must be charged with or arrested for a qualifying crime and be subject to release prior to arraignment. There is no requirement that the perpetrator be a family member or have a family relationship.

What does each Order do?

Domestic Violence Protection Order (DVPO)

DVPOs will restrict contact and require that the preparator surrender firearms. Additionally, DVPOs may exclude the perpetrator from a home, dwelling, or other place the victim may be staying, recommend counseling for both parties with a domestic violence program or other agency, establish possession of property, award temporary custody and visitation rights, and set up temporary child and spousal support.

Disorderly Conduct Restraining Order (DCRO)

DCROs will restrict and prevent the perpetrator from having contact with or harassing a victim.

Criminal No Contact Order (NCO)

NCOs only limit contact between the victim and the abuser. They are criminal in nature and will not cover the same areas as a DVPO.

Who can seek each Order?

Domestic Violence Protection Order (DVPO)

Any victim of domestic violence can seek a DVPO from the Court, either pro se or with the help of an attorney.

Disorderly Conduct Restraining Order (DCRO)

Any victim of disorderly conduct can seek a DCRO from the Court, either pro se or with the help of an attorney.

Criminal No Contact Order (NCO)

The prosecutor or State’s Attorney in a criminal case can request the NCO as part of their pending criminal matter.

Is there a filing fee for these protective orders?

Domestic Violence Protection Order (DVPO)

There is no filing fee for victims of domestic violence in DVPO matters.

Disorderly Conduct Restraining Order (DCRO)

The victim of disorderly conduct will have a civil filing fee for a DCRO. This fee is not required if the alleged acts involve acts of domestic violence.

Criminal No Contact Order (NCO)

Because NCOs are part of the criminal file, there is no filing fee for the victim.

Do I need to have a hearing?

Domestic Violence Protection Order (DVPO)

Once an application is filed, the Court must hold a hearing within 14 days. If an ex parte DVPO is entered, the court must hold a hearing within 14 days from the issuance of the temporary DVPO.

Disorderly Conduct Restraining Order (DCRO)

A hearing must be held within 14 days after the issuance of a temporary DCRO, unless the time period for a hearing is extended by the written consent of the parties.

Criminal No Contact Order (NCO)

A NCO may be entered against a qualifying perpetrator upon release from custody before arraignment or trial. Upon arraignment, the court will determine if the NCO needs to be extended.

How long can my Order last for?

Domestic Violence Protection Order (DVPO)

North Dakota law does not have a defined period that a DVPO can be issued for. The length of the DVPO must be reasonable under the facts of each case.

Disorderly Conduct Restraining Order (DCRO)

A DCRO may be issued against an individual for up to two years.

Criminal No Contact Order (NCO)

If the perpetrator is not charged, the NCO expires 72 hours after issuance of the NCO. Law enforcement is directed to keep the NCO on file for one year or until the date of expiration specified in the Order.

Minnesota

Divorce

It’s about to start! What should I do?

If you believe your marriage is in trouble, there are several ways you can and should protect yourself:

Don't sign any papers and negotiate on your own. If your spouse requests that you sign any agreements, documents, contracts, promissory notes, deeds, mortgages, etc., refrain. The consequences of signing such papers may be irreparable and detrimental to your case. Just as important as not signing any documents, you should not verbally agree to any terms or agreements prior to talking to an experienced family law attorney.

Hire an Experienced Divorce Attorney. Choosing the right attorney to represent you is an important, and often difficult, decision. In making the decision, you should look for an attorney who is:

Professional: Your attorney should look and sound like a professional person. If you meet with a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place, these might be problem signs.
Competent: Divorces often involve important issues such as the custody of children and complex financial issues. You should entrust these important considerations to someone who has the knowledge and skill to handle them competently.
Respectful: Your attorney should treat you as an adult who needs help with a problem. He or she should recognize that you are in an emotional situation, and not ridicule or embarrass you because you are in a relationship that has not worked out.
Compatible: Your attorney will be helping you through an unfamiliar and often traumatic period of your life. Throughout the process, you may need to disclose intimate or even embarrassing information to your attorney. Your attorney must be someone with whom you are comfortable under these circumstances.
Candid: Throughout your divorce, you may have to make numerous difficult decisions. It is imperative that your attorney is open and honest with you in helping you make these decisions, rather than simply telling you what you want to hear. While the truth about a given situation may be unpleasant, it is to your benefit to be fully informed.

Journal all Monthly Expenses and Save Receipts. Keep an accurate accounting of your monthly income and expense. Keep all receipts and deposit tickets. Be cautious of your spending and avoid frivolous shopping sprees.
Take Care of Yourself. Establish a support system consisting of family, friends, neighbors, etc. Take care of your health. Take care of your children. Keep working-don't quit your job.
Play Nice. Don't be mean just to be mean; don't be petty just to be petty. Take the higher ground. Avoid spousal bashing, especially in front of your children. In the end, your divorce will be more bearable and it will be easier for you to move forward.

What documents should I gather?

In order to get the most out of the initial consultation with your attorney and save both time and expense, make sure you have copies of the following documents:

Tax returns for the past five years;
Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
Business records pertaining to ownership, assets, liabilities, income and expenses;
Personal and business bank statements for the past year;
Loan applications/agreements, promissory notes, debt statements;
Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
Insurance records including policies, applications, and invoices;
Financial statements or statements regarding your net worth
Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
Complete list of all personal property.

In addition to gathering the above documentation, we encourage our clients to fill out and return our divorce intake sheet.

How long do I have to live in Minnesota to get a divorce?

A divorce in Minnesota may not be granted unless one of the parties has lived in the state for at least 180 days.

Is Minnesota a “no fault” state…and what does “no fault” mean, anyway?

Yes, Minnesota is a no-fault state. In days gone by, a court could only grant a divorce if the respondent had committed one of these “fault” behaviors:

adultery,
extreme cruelty,
willful desertion,
willful neglect,
abuse of alcohol or controlled substances,
conviction of felony.

Unless a party could prove one of these behaviors, he or she could be trapped in a marriage. That a person was generally unhappy or that a divorce was love-less wasn’t enough.

Minnesota has now abolished these fault “grounds” for divorce. Today, proof of “fault” is not required. Instead, “a dissolution of a marriage shall be granted by a county or district court when the court finds that there has been an irretrievable breakdown of the marriage relationship.” M.S., Section 518.06.

“Irretrievable breakdown” means little more than “I’m not happy in this marriage, and I want out.” Before this was an acceptable legal reason to divorce, parties could be trapped in unhappy marriages.

Likewise, other than dissipation or wasting assets, a Minnesota court cannot consider marital misconduct, such as infidelity, when dividing asset and debts or considering a spousal support award.

What is the difference between divorce and separation?

Generally, how do Minnesota divorce courts divide the parties’ assets and debts?

As a general matter, each spouse will be allowed to keep 100% of his or her “non-marital assets.” The value of the “marital” estate—marital assets minus marital debts—is usually divided equally.

In cases of undue hardship, a court can award one party some of the other party’s non-marital assets or can divide the marital estate unequally.

Which assets are “non-marital”?

“Nonmarital property” means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which:

is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;
is acquired before the marriage;
is acquired in exchange for or is the increase in value of property which is described in clauses (1), (2), (4), and (5);
is acquired by a spouse after the valuation date; or
is excluded by a valid antenuptial contract.

What assets and debts make up the marital estate?

All assets acquired during the marriage, and all debts incurred during the marriage, that are not “non-marital” are marital.

How does the court handle spousal support claims?

If a court is at all in doubt over which kind of support is more appropriate, it leans in favor of a permanent award.

When deciding the amount and duration of a spousal support award, Minnesota courts consider many circumstances, including:

the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;
the standard of living established during the marriage;
the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
the age, and the physical and emotional condition of the spouse seeking maintenance;
the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.

The distribution of the parties’ marital debts and assets connects with the spousal support issue. People who receive handsome estates in their divorce are less likely to receive spousal support

Custody

What is physical custody?

In Minnesota, “physical custody” defines where the children physically reside most the time, and which parent(s) provide their daily care. There are a few different physical custody arrangements to consider:

“Sole physical custody” describes a situation where the children live with one parent more than 50% of the time, and that parent has control over the routine daily care of the children. Historically, courts have favored awarding one parent physical custody of the children and awarding the other parent visitation to maintain ongoing contact and a close relationship between the children and both parents.

“Joint physical custody” is a term used when children spend between 45.1% and 50% of their time with each parent. Both parents share the day-to-day care of the children. There is no presumption for or against joint physical custody, except in cases involving domestic violence. However, true joint physical custody arrangements are less common due to their potential to cause both personal and practical difficulties for children. Unless separating parents can effectively co-parent and communicate with one another, adopt similar parenting styles and daily routines for their children, and live relatively close to one another, joint physical custody arrangements are laden with risk.

“Split physical custody” is another, although much less favored, custody option. In split custody cases, one parent has sole physical custody of one or more of the parties’ children, and the other parent has sole physical custody of the other child(ren). Courts usually prefer not to separate siblings.

What is legal custody?

“Legal custody” involves the decision-making authority parents have regarding their children’s health, education, welfare, and upbringing. In most cases, parents agree to, and courts award, joint or shared legal custody. In fact, there is a rebuttable presumption in Minnesota that, upon request of either or both parties, joint legal custody is best for children. If legal custody is shared, the Court must set a method of dispute resolution if the parents do not agree. For example, the Court may order, if the parents do not agree, dad will decide. Or, it may say, if the parents do not agree, they will work with a third party (i.e. mediator) to resolve the dispute.

How are disputes regarding physical and legal custody resolved?

Physical and legal custody of your children will be decided one or two ways: (1) by agreement between parents, or (2) by the Court. If parents are unable to agree on a parenting plan, and the Court must decide, the Court will evaluate the following factors to determine the best interests of the child:

A child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;

Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

Whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;

Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;

The history and nature of each parent's participation in providing care for the child;

The willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

The effect on the child's well-being and development of changes to home, school, and community;

The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;

The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

Except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

The Court must make detailed findings on each of the factors above based upon the evidence presented and explain how each factor led to its conclusion and to the determination of custody. The Court may not use one factor to the exclusion of all others.

I’m getting a divorce, and my spouse and I cannot agree on custody of children. What do I do?

If custody of your children may be an issue, keep the following things in mind:

At what age does the law allow a child to decide which parent to live with?

There is no specific age at which a child may decide which parent to live with. A child’s custody preference is give more respect as the child’s age and maturity increases. As you’d expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Court’s seldom—but may—consider children age ten and under to have a sufficient maturity to express a residential responsibility preference. A child’s preference will be discounted if it appears “purchased” by a parent’s manipulations. Minnesota law gives an older teen’s custody preference much more priority and importance than does North Dakota.

Can a custodial parent move out of state with the kids?

Usually, but not always. The general rule is that a custodial parent may not move from the state where the divorce was granted without the consent of (1) the other parent, or (2) the Court. In fact, a person moving the children without such consent may face civil contempt findings or criminal prosecution for depriving the other of parental contact. If the other parent will not consent to the move, you must ask the court for permission. The noncustodial parent has the burden of showing that the move will be against the children’s best interests. If the court grants permission to move, it will also restructure parenting time rights to accommodate the non-moving parent.

Do you have tools to help us understand, remember, and visualize a parenting schedule?

Our office uses “Custody X Change” software. Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable. Accordingly, we can provide our clients a color-coded calendar for the entire year—or beyond—showing when the children will be with each parent. The calendar includes start and end times for regular, holiday, and summer parenting times. Each parent can simply post the calendar on their fridge and both will know exactly when the children should be with them. The calendar can also be used as a journal to record parenting time events, good or bad, as they occur. Our fee for providing this service is quite reasonable.

The other parent and I can’t be in each other’s presence. How do we transfer our kids from one parent to the other?

Do moms always get residential responsibility of the children?

No, they don’t. It may be true that moms end up with primary residential responsibility of children more often than dads, but not because of judicial bias in favor of moms, but as a reflection of a society. Think about it. How many stay-at-home dads do you know? How many stay-at-home moms? We still tend to put a more and higher parenting burdens on moms than dads. Court decisions simply reflect…us.

Minnesota’s statutes and case law assure that, as between moms and dads, there is no presumption as to who will be awarded custody. Our office’s experience through the years verifies this lack of gender bias. In parenting time disputes, the better parent is awarded residential responsibility, regardless of gender.

Can grandparents obtain a Court Order allowing them to spend time with their grandchildren?

Yes, but it’s hard. Grandparents can obtain a Court Order allowing reasonable visitation with grandchildren. The grandparents have a difficult burden of proof, however. The grandparents must prove that visitation: (1) will be in the best interests of the children, and (2) will not interfere with the relationship between the children and their parents.

Can anyone, other than a parent, get custody of a child?

Biological parents are entitled to custody of their children unless it clearly appears they are unfit, have abandoned their right to custody, or there are some extraordinary circumstances that would require they be deprived of custody. If any of the above are true, the Court may apply a best-interest-of-the child test when awarding custody to a third party.

The Minnesota Supreme Court has held there is a presumption in custody cases that the natural parent is fit to raise his or her own child, and that the burden of disproving the presumption rest with those who challenge it. There must be “grave and weighty” reasons to separate a child from their natural parent. Third party custody claims are very rare and are often unsuccessful.

I am not happy with the current parenting plan and custodial arrangement involving my children. Can the parenting plan be changed?

A request to amend a custody order may not be made within one years of the original custody order, or within two years after a previous modification order unless: (1) the parties agree to the modification; (2) there is persistent and willful denial or interference with parenting time; or (3) the court has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

The Court may not modify custody, even after the time frames set forth above, unless it finds: (1) upon the basis of facts, that have arisen since the prior order, or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties; and (2) the modification is necessary to serve the best interests of the child. In applying these standards, the court must retain the present custody arrangement or the parenting plan established by the prior order unless:

The court finds a change in the custody arrangement or primary residence is in the best interests of the child and the parties previously agreed, in a writing approved by a court, to apply only the best interests’ standard;
Both parties agree to the modification;
The child is already integrated into the noncustodial parent’s family, by consent of the custodial parent;
The child's present environment endangers the child's physical or emotional health or impairs the child's emotional development, and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
The court has denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the court's order.

A parent seeking to change custody has the burden of proving the elements above.

How should I tell the children about the divorce?

Divorce represents a major upheaval for your entire family, including your children. You can help your kids through the process by creating a game plan of how and when to discuss your divorce with your children. In many cases, it is a good idea to reach out to a child therapist for guidance before you discuss your divorce.

Although you and your spouse may be at odds during your divorce, it is critical to your children’s well-being that you present a unified front when you do talk to your children. Once you’ve decided to discuss your divorce plans with your kids, make sure you’ve picked a neutral time and location for the meeting. It is best to be honest with your kids, without going into too many unnecessary details. It is also very important to assure your children that both parents love them, and that love won’t go away.

Parenting Time (Visitation)

What are the Minnesota Best Interest Factors the courts analyze when making parenting time determinations?

What is an example of a “boilerplate” schedule the Court may award if my ex-partner and I cannot agree on one?

Alternating weekends with the non-primary parent from Friday evening to Sunday evening.
One evening visit per week with the non-primary parent (generally not an overnight visit).
Alternating holiday schedule including New Year's Day, Easter Weekend, Memorial Day Weekend, 4^th of July Weekend, Thanksgiving Day or Weekend, half of the Christmas holiday.
Extended Summer Visitation ranging anywhere from one week to six weeks with the non-primary parent.

Do you use any tools that can help me, my kids, and their other parent better remember our parenting schedule?

What solutions are there when parents have conflict when transferring kids back and forth?

There are a number of options to remedy this problem. The easiest solution is to structure a parenting time schedule requiring exchanges to occur at natural transition points during the day, such as having the other parent pick up the children from school or daycare, rather than from your home. Another option is to use Rainbow Bridge Safe Exchange/Visitation Center, which offers a positive, safe, child friendly and neutral site where children and parents can be assured a supervised visitation or exchange will be safe and conflict free. All services provided by Rainbow Bridge are confidential. Rainbow Bridge is located at 715 North 11th Street, Suite 101, in Moorhead, Minnesota. You can reach Rainbow Bridge at (218) 299-7694 or 1 (800) 452-3646, ext. 7694.

Our family’s circumstances have changed since the court’s original decision. Can our parenting time schedule be changed, too?

My ex denies me my parenting time. Is there any way I can make this time up? Can my ex get in trouble for denying my time?

Most likely, yes! In Minnesota, a person wrongfully deprived of their parenting time is entitled to “compensatory” (make up) time. In addition, a parent who wrongfully obstructs the other’s parenting time can be found “in contempt” and be punished for it. It is very important to document your attempts to exercise your parenting time to prove the denied time (e.g. text messages or emails).

Can grandparents obtain a Court Order allowing them to spend time with their grandchildren?

Child Support

How is child support calculated?

There is a child support calculator available to you online. Before you start the calculator, you should have the information listed here.

The parent who will have physical custody of the child(ren);
The amount of visitation the non-custodial parent will exercise with the child(ren) (counted in overnights, in percentages, less than 10%, 10-45%, or at least 45.1%);
Both parents’ gross monthly wages from all sources of income;
If one parent is unemployed, what is that parent’s potential gross monthly wages (i.e. what did they earn prior to unemployment, or what are the wages from unemployment);
A child support or spousal support order from another case;
The number of non-joint children who will live in the home with either parent;
The amount a parent pays for health or dental insurance for the joint children only, and;
The amount a parent pays for daycare expenses for the joint children only.

The calculator will determine the child support obligation, and the percentage each parent should pay toward medical, dental, and child care expenses for the child(ren).

What are “gross wages” for child support purposes?

Income considered for child support purposes, includes:

Salaries, wages, commissions, self-employment income, workers’ compensation, unemployment benefits, annuity payments, military and naval retirement, pension and disability payments, spousal maintenance received under a previous order, social security or veterans’ benefits provided for a non-joint child, and potential income.

Gross income is the amount earned prior to making pre-tax deductions such as health insurance benefits or retirement accounts. Also, under specific circumstances, gross income may not include overtime wages or bonuses. You should speak with an attorney to make sure you have calculated your gross income correctly.

How is child support calculated when a parent is unemployed?

The State assumes any person can work at least 40 hours a week for minimum wage. If a parent is unemployed, the court may calculate potential income by either:

Looking at his or her past earning history, job qualifications, and available jobs in the community, or;
Use his or her unemployment earnings, or;
Use the amount of income he or she would earn working 40 hours per week at 150 times the Federal or State minimum wage.

Rare exceptions apply such as, working as a caretaker for a child who has special needs, or economic conditions which directly affect your employment status. You should meet with an attorney if you think an exception should apply to your situation.

I’m self-employed, and my income fluctuates each year. How is my gross income determined?

If you are self-employed it can be difficult to determine what your gross wages were for the year. You should be prepared to turn over your previous five years’ tax returns, including all the schedules and worksheets. Some of the income you deducted for income tax purposes, is not deductible for child support purposes.

If your income fluctuates each year, your gross income will be determined by averaging your income over either a three or five-year period.

How long do I have to pay child support?

A child support order terminates under various circumstances, including:

When your child turns 18 or through the month in which your child graduates from high school;
When your child turns 20, if they are still enrolled in high school and living with the other parent;
When your child gets married;
When your child becomes self-supporting;
When your child joins the armed services;
When your child is legally emancipated, or;
By order of the court.

I have three children. My daughter is graduating high school this year. Will my child support automatically go down when she graduates?

No. You need to file legal papers (a motion) with the court asking the court to modify your child support obligation.

Where do I send my support payments? Do I pay my ex directly?

All child support payments are paid through the Minnesota child support payment center at P.O. Box 64326, St. Paul, MN 55164-0326. The commissioner of human services will send both parents information regarding wage withholding when legal documents are filed in any case where child support is required.

Under certain circumstances the payment center will permit a parent to pay their child support payments directly to the other parent. If you don’t qualify for wage withholding, (i.e. self-employed and don’t receive paychecks), you should mail your payments to the payment center. If you pay your ex directly, it could be considered a gift, and not a child support payment.

What information should I give to the child support payment center?

You will need to give the child support payment center your mailing address, telephone number, and your employer’s name and contact information. You are required to update this information when it changes.

I get along well with my ex-boyfriend. We earn close to the same income, and I really don’t want him to pay child support. Can I waive child support?

It is difficult to waive child support. A court might permit a waiver if the custodial parent significantly earns more income than the non-custodial parent, or if the parent’s income is similar and the child support payment is minimal.

You will need to meet with an attorney if you want to waive child support. The marital termination agreement or parenting plan requires special language. And it’s important to note, even if you qualify to waive child support, the Judge may not agree with the request.

No. The law requires that child support be calculated using the online calculator.

There are some exceptions built into the law though. If you are concerned about your ability to pay, you should meet with an attorney to determine if any of the exceptions apply in your situation.

I pay a lot of child support each month. I just want to know what it’s supposed to cover.

Our child has special needs. His medical expenses are very high each month. I’m afraid that my husband’s child support obligation won’t be enough to cover his expenses. Will he be ordered to pay more than what the calculator says?

Maybe. There are some exceptions to the basic child support calculation, and extraordinarily high medical expenses is one of them. You should discuss this with your attorney.

I have a child support order, but I’m struggling to pay it each month. Can my child support be modified?

Yes, you can request to modify your child support, under many circumstances. The most common reason to modify child support is when income has increased or decreased by at least 20%. It isn’t an easy task to modify your child support obligation. It is best to make sure it was calculated properly the first time around.

Can my child support order be back-dated?

Yes. When a child support order is modified, it becomes effective the month you filed your case. This is because it can take several months to get in to court.

My ex-girlfriend is supposed to pay me child support each month. She hasn’t paid in six months. How do I collect?

You should start a contempt action against your ex.

To protect yourself from a costly contempt action, you should request “income withholding only services,” from your local child support office. You will complete and return an application for this service. The office will keep track of the payments she is making, and if she falls behind, they will initiate the contempt action for you. This is a free service to you, but will cost your ex $15 per month on top of the child support obligation.

If you don’t sign up for this service, you will need to take her to court. To start a contempt action, she must owe at least $500 and be 90 days behind. If you hire an attorney to collect past due child support (arrearages), you are entitled to reasonable attorney’s fees as part of the action. However, this is limited to 30% of the arrearages you are attempting to collect. To receive your attorney’s fees, you must receive a Judgment, and your attorney must file notice of your intention to receive attorney’s fees.

Be aware though if she pays the judgment in full within 20 days, she will not have to pay your attorney’s fees.

Paternity

I have been told that I am a “presumed father.” What does that mean, and how is it different from any other kind of father?

A man is presumed to be the father of a child if:

He and the child’s mother are married to each other and the child is born during the marriage or within 280 days after the marriage is terminated;
He and the child’s mother attempted to marry each other; and he has acknowledged his paternity in a formal writing, he is named the child’s father on the birth certificate, or he is obligated to provide financial support for the child;
He receives the child into his home and openly holds the child out as his own;
He and the mother acknowledge his paternity in a formal writing, which is then filed with the state registrar of vital records
He and the child’s mother have executed a recognition of parentage form, but there are competing presumptions of paternity or competing recognition forms
He and the child’s mother executed a recognition of parentage form, but both were minors at the time

If one of the above presumptions applies, it may be rebutted in certain circumstances, including a court decree adjudicating another man as the child’s biological father.

A putative or alleged father generally means a man who has not established a legal relationship with a child, but who may be or claims to be a biological father.

An adjudicated father is one based upon a judgment or order of the court determining the existence of the parent-child relationship.

Each of the above definitions carries its own set of legal consequences.

What is the Fathers’ Adoption Registry?

The Minnesota Commissioner of Health is required to establish and maintain a Father’s Adoption Registry. The purpose of the registry is to allow possible biological fathers (not yet established as legal fathers) to receive notice of a pending adoption proceeding for their children, thus allowing them to participate in that process.

No adoption may be granted in the State of Minnesota unless a search of the Registry is first completed to determine whether any putative father may be or should be a party.

Except for putative fathers who are specifically entitled to notice and consent under the adoption statutes, a putative father who fails to timely register on the Registry is barred from later bringing an action to assert an interest in the child and is considered to have abandoned that child.

Any putative father may sign up on the Registry, and there is no fee to do so. Registration must occur within 30 days after the birth of the child.

Is a court order the only way to establish paternity?

No. A mother and father of a child may sign a notarized document called a recognition of parentage, which is then filed with the state registrar of vital statistics, to acknowledge under oath that they are the biological parents of a child.

If the child has a presumed father under a statute, that man may join in the signing of a recognition of parentage form to acknowledge that another man is the biological father. A joinder like this must be executed within one year of the child’s birth to be valid.

Unless a judicial proceeding determines otherwise, a validly-executed recognition of parentage has the force and effect of a court order establishing paternity. If there are no competing presumptions of paternity, once a recognition has been properly executed and filed, the court may not allow additional action to determine paternity. An action to determine custody and parenting time can be started without the need for any formal adjudication of paternity.

A recognition of parentage form is the basis for bringing an action to award temporary or permanent custody, parenting time, child support, and possible contributions toward the mother’s pregnancy and birth expenses.

What if there was a mistake on the recognition of parentage form?

A recognition of parentage may be revoked in a sworn writing within 60 days of its execution or the date of the first hearing concerning the child, whichever is earlier.

Otherwise, an action to vacate a recognition of parentage form must be brought by the mother or father within one year of the execution of the form or within six months after the person bringing the action obtains a genetic test that indicates an error. A child must bring an action to vacate within six months after the child obtains a genetic test that indicates an error, or within one year of reaching the age of majority, whichever is later.

I’m not married to my child’s mother. Do I have any rights?

A parent-child relationship may exist regardless of the marital status of the parents. However, in Minnesota, if the parents are not married at the time of the child’s conception or birth, the biological mother will have sole custody, by statute, until paternity or custody has been established in a separate proceeding.

Once a father’s paternity has been recognized or established, he may petition for rights of custody or parenting time. Upon such a petition, the proceeding is treated as an initial determination of custody for that child. No heightened evidentiary burdens apply to either party. The fact that the parents of the child are not or were never married is not determinative of the custody of the child.

The County commenced a parentage action to establish my child support obligation. Will the County help me establish custody and parenting time rights, too?

No. The County may bring an action to establish parentage and a child support obligation. In addition, if the mother and father agree, in that same proceeding, the following may be established: legal and physical custody, parenting time, and the child’s legal name. However, the County does not represent either party on any of these issues. The County’s interest is to establish and enforce appropriate child support only.

I’m not sure if I am the biological father. Can I get a genetic test?

Yes. The court can require the child, the mother, and any alleged father to submit to blood or genetic tests. In Minnesota, a 99% or greater probability following a genetic test creates an evidentiary presumption that the alleged father is the biological father of the child.

What if I didn’t know I might be a father? Are there time-frames I need to worry about?

There is a distinct difference between an action to declare the existence of a father-child relationship and an action to declare the non-existence of a father-child relationship.

If a man is presumed to be a child’s father under a statutory presumption, a paternity action may be brought at any time to formally adjudicate that relationship.

If there is no presumed father, a paternity action may be commenced within one year after the child reaches the age of majority (18 in Minnesota.)

However, if the purpose of the action is to establish the non-existence of a presumed father-child relationship, the action must be brought within two years after determining there is reason to question the presumed father, but in no event after the child’s third birthday.

The only exception to the 3-year rule above is if the presumed father was divorced from the child’s mother and did not know that a child was born within 280 days after the marriage ended. In that particular circumstance, an action may be brought within one year after the child reaches age 18 or one year after the presumed father should have known about the birth of the child, whichever is earlier.

Otherwise, the three-year limitation period is an absolute bar to an action to declare non-paternity, even if subsequent genetic testing reveals that the presumed father cannot be the biological father.

If a man is presumed to be a father specifically because he signed a recognition of parentage, any action to declare the non-existence of the father-child relationship must be brought within six months after the signor obtains genetic testing indicating non-paternity.

Can I take any legal action before a child is born?

Yes. A paternity action can be commenced before a child is born. However, very few actual steps can be taken. Service of process can be achieved, and depositions may be taken to preserve testimony. Otherwise, the action will be stayed until the birth of the child.

So, I’ve been adjudicated to be a father. What now?

A paternity adjudication order may contain provisions concerning custody, parenting time, child support, the child’s name, and any other matter in the best interests of the child. A paternity order is the basis to establish all of these additional rights and responsibilities concerning a child.

Following any judicial proceeding to establish paternity, if the court’s judgment or order differs from the information on the child’s birth record, a new birth record must be issued by the registrar of vital statistics.

Do I have to bring a separate action to establish custody and parenting time?

No. A separate paternity action is not necessary. A claim regarding paternity may be brought as part of a marriage dissolution, legal separation, custody, or child support action. In other words, as an alleged or presumed father, you can bring one action to establish paternity, legal custody, physical custody, parenting time, and child support.

Adoption

Who can be adopted?

Any person, regardless of age, may be adopted in Minnesota.

Who may adopt?

Any person who has resided in Minnesota for one year or more may petition to adopt a child or an adult. The residency requirement may be waived if it is the child’s best interests.

Do I need my child’s biological parent to agree to the adoption?

In most cases, the consent of a biological, non-custodial parent, is needed for an adoption to be finalized.

Who needs to consent to an adoption?

In direct placement and stepparent adoptions, the biological parents must consent to the adoption. In adult adoptions and adoptions of children over the age of 14, the adoptee must consent. In agency adoptions, parental rights are terminated separately and the entity with custody of the child (i.e. the State) must consent.

What happens if I can’t find my child’s biological parent and he/she has not been involved in our child’s life?

Minnesota allows adoptions without the consent of a noncustodial parent if the parent abandons the child or if the parent has lost legal rights through a judgment and he/she receives notice of the adoption hearing.

What happens when a biological parent consents to the adoption?

The rights of the biological parent that consents to an adoption are terminated. In stepparent adoption cases, the termination relates only to the noncustodial parent.

Can a biological parent withdraw his or her consent and, if so, when?

A parent may withdraw a consent for any reason within 10 working days after it is entered. After the 10^th working day, the consent is deemed irrevocable, unless a court finds it was obtained by fraud.

Do I need to go through an agency for my adoption?

A licensed adoption agency is necessary for direct placement and agency adoptions. The adoption agency must provide various reports to the court. Adoption agencies are not required for stepparent adoptions.

I know someone who is pregnant and wants to give the child up for adoption to me. How do I go about that?

This is a direct placement adoption. A pre-adoptive placement study is the first step, followed by a relinquishment of custody and placement of the child prior to the adoption. After a time, normally six months, the Adoption Petition will be filed and heard by a court.

We are the foster parents of a child and have been approved for adoption. Does your office handle those cases?

Gjesdahl Law handles these agency adoptions on a regular basis and works with the various agencies in the area to ensure that the process moves along smoothly for your new family.

What is the Indian Child Welfare Act (ICWA)?

ICWA is a federal law that gives a placement preference to the various Native American tribes if the child to be adopted is eligible for enrollment with a tribe.

How does ICWA affect adoptions?

Does Minnesota have a Putative Father’s Registry?

Yes, Minnesota does have an Adoptive Father’s Registry. A search of the registry must be completed before an adoption decree may be entered. A link to the State website can be found on our adoption links page.

Once all the paperwork is filed, what are the final adoption steps?

Assisted Reproduction

What are some situations where ART is involved?

There are many, including (but not limited to):

Heterosexual couple, using donated sperm and donated egg. Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Heterosexual couple, using donated sperm or donated egg, but sperm or egg from one member of the couple. Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Homosexual couple, typically using one’s sperm or egg, paired with donated egg or sperm (often donated by the other’s family member).

Who is involved in an ART arrangement?

The usual interested participants usually include:

Intended parents: Normally husband and wife, but not always.

Gestational Carrier: The Gestational Carrier, and if married, her spouse.

What’s the difference between a Gestational Carrier and a Surrogate?

Gestational carrier arrangements are much safer. Still, not all states bless them and, in fact, many have generated no law that addresses them.

Does Minnesota law address gestational carrier arrangements?

No. Although the Minnesota legislature has considered enacting statutes to address such arrangements, a strong coalition of conservative religious groups have caused the legislature to shy away.

On the upside, however, there is no Minnesota statute that prohibits gestational carrier arrangements. It is in this void that Minnesota ART attorneys regularly, and comfortably, process such arrangements.