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Questions and Answers

North Dakota

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:

  1. 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.

  2. Hire an Experienced Family Law 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.

  3. Don't move out of the marital residence. Especially in situations where there are children involved and custody is a concern, do not move out of the marital residence without talking to your attorney first. If you are in danger and have no choice but to leave, take the children with you.

  4. Put your Documents in Order and Keep them Secure. Make sure your valuable documents are stored in a safe place so that you have access to them at all times. Critical financial documents include tax returns, insurance policies, real estate documents, mortgages, debt information, bank statements, investment accounts, income information and any benefit programs.

  5. Close Joint Financial Accounts. If you and your spouse have any joint credit cards, charge accounts or bank accounts, consider immediately closing, canceling or freezing those accounts. Be careful and considerate, however, with respect to accounts used to auto-pay monthly bills.  You don’t want bills to go unpaid or to harm your or your spouse’s credit rating.  Be sure to keep sufficient documentation about any outstanding balances at the time the account was closed, or, if you are closing a joint bank account, keep accurate documentation of the balance at the time the account was closed as well as an accounting of any transfers, deposits or withdrawals made to or from the account.

  6. Establish Your Own Credit. Before you begin any divorce proceedings, you should make sure that your name is attached to any real estate documents, vehicle titles, pension accounts or other investment accounts. In addition, after you have closed any and all joint financial accounts, you should acquire a credit card and bank account in your name alone.

  7. Create an Inventory of your Assets. Take inventory of your personal property. Photograph, list, and value all property. List property you wish to receive. If you consider any property to be your "non-marital" property, (gifts, inheritance, items belonging to you prior to marriage), create a document trail on how the property was acquired.

  8. 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.

  9. 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.

  10. 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:

  1. Tax returns for the past five years;
  2. Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
  3. Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
  4. Business records pertaining to ownership, assets, liabilities, income and expenses;
  5. Personal and business bank statements for the past year;
  6. Loan applications/agreements, promissory notes, debt statements;
  7. Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
  8. Insurance records including policies, applications, and invoices;
  9. Financial statements or statements regarding your net worth
  10. Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
  11. 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 may not be granted in North Dakota 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:

  1. adultery,
  2. extreme cruelty,
  3. willful desertion,
  4. willful neglect,
  5. abuse of alcohol or controlled substances,
  6. conviction of felony,
  7. 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:

  1. Family assets: assets received by gift or inheritance from the family of one of the parties.
  2. Premarital assets: assets owned by a party prior to marriage;
  3. Waste: a party has frittered marital assets away;
  4. 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

A paying spouse’s taxable income is reduced by the amount of spousal support they pay each year.  Likewise, the receiving spouse must pay income taxes on the spousal support they receive.  Accordingly, both parties should pay attention to tax consequences when negotiating or litigating this issue.


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:

  1. Don’t sign any papers or negotiate on your own. If your spouse requests that you sign any residential responsibility or parenting time agreements, refrain.  The consequences of signing such papers, before consulting an attorney, 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 agreement prior to talking to an experienced family law attorney.

  2. Hire an experienced family law 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 professional.  Some red flags may include a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place.

    • Competent: Divorces often involve important issues such as the residential responsibility of children and complex financial issues.  You should entrust these important considerations to someone who has the knowledge and skills 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 your attorney is open and honest with you when 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.

  3. Don’t procrastinate. If you have been served with a Summons and Complaint stating that an action has been commenced against you, don’t wait until the last minute to find an attorney.  Giving your attorney ample time to make a well thought out response can only help your case.

  4. Don’t move out of the marital residence. In situations where there are children involved and residential responsibility is a concern, do not move out of the marital residence without talking to your attorney first.  If you are in danger and have no choice but to leave, take the children with you.

  5. Journal, journal, journal. Every parent facing the prospect of parenting time litigation should keep a journal.  The outcome of any case will likely turn on a multitude of events.  The details of those events will have been lost unless written down.  Without those details, statements of prior events lose persuasive impact.  General statements such as “he always…” or “she never…” do not sway judges.  As such, you should record such things as abusive events, the use of bad language, whether parenting time has taken place, been missed, or interfered with, whether parenting times have started and ended on time, what a personal has done with the kids during parenting time, what kind of care the other parent is providing, and more.  If your common sense tells you it is important, write it down as it happens.  The details of past events will be your most powerful evidence.

  6. Keep your children out of the divorce. Don’t put your children in the middle of your problems or ask them to take sides.  Don’t use your children as confidants.  Don’t argue in front of your children.  Don’t pump your children for information about the other parent or use your children to carry messages back and forth.  Tell your children you love them and make sure your children know that it is okay to love the other parent.  Reassure your children that they are loved by both parents and they will always be taken care of.

  7. Play nice. Don’t speak negatively about your spouse in front of your children or discourage their communication with the other parent.  Include your spouse in your children’s school activities and special events.  If you are separated from your spouse, allow the children to have reasonable contact with the other parent.  Don’t be mean just to be mean; don’t be petty just to be petty.  Take the higher ground.  Develop a workable and cooperative parenting plan that gives your children access to both of you.  Make every effort to agree with your spouse about discipline.  This will help your child feel more secure.  In the end, your parenting time arrangements will be more bearable and it will be easier for you and the children to move forward.

  8. Avoid exposing your children to your new significant other.

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 11th 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.


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

  1. 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.
  2. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
  3. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
  4. 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.
  5. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
  6. The moral fitness of the parents, as that fitness impacts the child.
  7. The mental and physical health of the parents, as that health impacts the child.
  8. The home, school, and community records of the child and the potential effect of any change.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

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, 4th 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.


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:

  1. He or she is earning 60% of the statewide average wage for the same position, or;
  2. 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 terminates under various circumstances, including:

  1. When your child turns 18 or through the month in which your child graduates from high school;
  2. When your child turns 19, if they are still enrolled in high school and living with the other parent;
  3. When your child gets married;
  4. When your child joins the armed services, or;
  5. 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.


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.

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.


What about same sex couples?

Even though North Dakota law reads “husbands and wives,” same sex marriages are recognized in North Dakota and same sex couples may adopt.


What types of adoptions are available for families?

North Dakota allows for agency adoptions, identified adoptions, stepparent adoptions, and adult adoptions.


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 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. 


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.


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

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:

  1. 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.
  1. Hire an Experienced Family Law 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.
  1. Don't move out of the marital residence. Especially in situations where there are children involved and custody is a concern, do not move out of the marital residence without talking to your attorney first. If you are in danger and have no choice but to leave, take the children with you.

  2. Put your Documents in Order and Keep them Secure. Make sure your valuable documents are stored in a safe place so that you have access to them at all times. Critical financial documents include tax returns, insurance policies, real estate documents, mortgages, debt information, bank statements, investment accounts, income information and any benefit programs.

  3. Close Joint Financial Accounts. If you and your spouse have any joint credit cards, charge accounts or bank accounts, consider immediately closing, canceling or freezing those accounts. Be careful and considerate, however, with respect to accounts used to auto-pay monthly bills.  You don’t want bills to go unpaid or to harm your or your spouse’s credit rating.  Be sure to keep sufficient documentation about any outstanding balances at the time the account was closed, or, if you are closing a joint bank account, keep accurate documentation of the balance at the time the account was closed as well as an accounting of any transfers, deposits or withdrawals made to or from the account.

  4. Establish Your Own Credit. Before you begin any divorce proceedings, you should make sure that your name is attached to any real estate documents, vehicle titles, pension accounts or other investment accounts. In addition, after you have closed any and all joint financial accounts, you should acquire a credit card and bank account in your name alone.

  5. Create an Inventory of your Assets. Take inventory of your personal property. Photograph, list, and value all property. List property you wish to receive. If you consider any property to be your "non-marital" property, (gifts, inheritance, items belonging to you prior to marriage), create a document trail on how the property was acquired.
  1. 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.

  2. 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.

  3. 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:

  1. Tax returns for the past five years;
  2. Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
  3. Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
  4. Business records pertaining to ownership, assets, liabilities, income and expenses;
  5. Personal and business bank statements for the past year;
  6. Loan applications/agreements, promissory notes, debt statements;
  7. Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
  8. Insurance records including policies, applications, and invoices;
  9. Financial statements or statements regarding your net worth
  10. Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
  11. 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 may not be granted in Minnesota 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:

  1. adultery,
  2. extreme cruelty,
  3. willful desertion,
  4. willful neglect,
  5. abuse of alcohol or controlled substances,
  6. 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?

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 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:

  1. is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

  2. is acquired before the marriage;

  3. is acquired in exchange for or is the increase in value of property which is described in clauses (1), (2), (4), and (5);

  4. is acquired by a spouse after the valuation date; or

  5. 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?

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.

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:

  1. 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;

  2. 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;

  3. the standard of living established during the marriage;

  4. 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;

  5. the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

  6. the age, and the physical and emotional condition of the spouse seeking maintenance;

  7. the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

  8. 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

A paying spouse’s taxable income is reduced by the amount of spousal support they pay each year.  Likewise, the receiving spouse must pay income taxes on the spousal support they receive.  Accordingly, both parties should pay attention to tax consequences when negotiating or litigating this issue.

 


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:

  1. Don’t sign any papers or negotiate on your own. If your spouse requests that you sign any residential responsibility or parenting time agreements, refrain.  The consequences of signing such papers, before consulting an attorney, 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 agreement prior to talking to an experienced family law attorney.

  2. Hire an experienced family law 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 professional.  Some red flags may include a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place.

    • Competent: Divorces often involve important issues such as the residential responsibility of children and complex financial issues.  You should entrust these important considerations to someone who has the knowledge and skills 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 your attorney is open and honest with you when 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.

  3. Don’t procrastinate. If you have been served with a Summons and Complaint stating that an action has been commenced against you, don’t wait until the last minute to find an attorney.  Giving your attorney ample time to make a well thought out response can only help your case.

  4. Don’t move out of the marital residence. In situations where there are children involved and residential responsibility is a concern, do not move out of the marital residence without talking to your attorney first.  If you are in danger and have no choice but to leave, take the children with you.

  5. Journal, journal, journal. Every parent facing the prospect of parenting time litigation should keep a journal.  The outcome of any case will likely turn on a multitude of events.  The details of those events will have been lost unless written down.  Without those details, statements of prior events lose persuasive impact.  General statements such as “he always…” or “she never…” do not sway judges.  As such, you should record such things as abusive events, the use of bad language, whether parenting time has taken place, been missed, or interfered with, whether parenting times have started and ended on time, what a personal has done with the kids during parenting time, what kind of care the other parent is providing, and more.  If your common sense tells you it is important, write it down as it happens.  The details of past events will be your most powerful evidence.

  6. Keep your children out of the divorce. Don’t put your children in the middle of your problems or ask them to take sides.  Don’t use your children as confidants.  Don’t argue in front of your children.  Don’t pump your children for information about the other parent or use your children to carry messages back and forth.  Tell your children you love them and make sure your children know that it is okay to love the other parent.  Reassure your children that they are loved by both parents and they will always be taken care of.

  7. Play nice. Don’t speak negatively about your spouse in front of your children or discourage their communication with the other parent.  Include your spouse in your children’s school activities and special events.  If you are separated from your spouse, allow the children to have reasonable contact with the other parent.  Don’t be mean just to be mean; don’t be petty just to be petty.  Take the higher ground.  Develop a workable and cooperative parenting plan that gives your children access to both of you.  Make every effort to agree with your spouse about discipline.  This will help your child feel more secure.  In the end, your parenting time arrangements will be more bearable and it will be easier for you and the children to move forward.

  8. Avoid exposing your children to your new significant other.

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?

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 11th 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, 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.

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.


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

  1. The child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
  2. Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
  3. 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;
  4. 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;
  5. Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
  6. The history and nature of each parent’s participation in providing care for the child;
  7. The willingness and ability of each parent’s participation in providing care for the child;
  8. The effect on the child’s well-being and development of changes to home, school, and community;
  9. 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;
  10. 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;
  11. 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
  12. 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.

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, 4th 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?

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?

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!  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?

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.


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.

  1. The parent who will have physical custody of the child(ren);
  2. 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%);
  3. Both parents’ gross monthly wages from all sources of income;
  4. 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);
  5. A child support or spousal support order from another case;
  6. The number of non-joint children who will live in the home with either parent;
  7. The amount a parent pays for health or dental insurance for the joint children only, and;
  8. 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:

  1. Looking at his or her past earning history, job qualifications, and available jobs in the community, or;
  2. Use his or her unemployment earnings, or;
  3. 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:

  1. When your child turns 18 or through the month in which your child graduates from high school;
  2. When your child turns 20, if they are still enrolled in high school and living with the other parent;
  3. When your child gets married;
  4. When your child becomes self-supporting;
  5. When your child joins the armed services;
  6. When your child is legally emancipated, or;
  7. 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.


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 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.

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.


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.


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.


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.


What about same sex couples?

Minnesota recognizes same sex marriages and allows those couples to adopt.


What types of adoptions are available for families?

Minnesota allows for agency adoptions, direct placement adoptions, stepparent adoptions, and adult adoptions.


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 10th 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?

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.  Minnesota also has a version of ICWA at the state level that may apply in some cases.


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 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?

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. In some cases, you will be required to undergo a post-adoption home study, although the court may waive this step in many circumstances.


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 Gestational Carrier, 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 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.


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. 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, Minnesota’s Office of Vital Records might provide a birth certificate identifying the intended parents as the child’s only parents, relying upon the Gestational Carrier Agreement and other requested documents.


What if Vital Records 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.”

Unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.


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

The answer is “probably not.”

Again, unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.


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

There may be a higher risk involved.

Again, unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.

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.


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.


Which Court issues which Order?

Order for Protection (OFP)

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

 

Harassment Restraining Order (HRO)

Harassment Restraining Orders are a civil action and are issued by the District Court.

 

Domestic Abuse No Contact Order (DANCO)

No Contact Orders are issued as part of a criminal action and issued in relation to a crime.

 


What must I show to get an Order?

Order for Protection (OFP)

OFPs require an allegation and showing of domestic violence.  Domestic Violence is physical harm, the infliction of fear of imminent harm, bodily harm or assault, criminal sexual assault, or interference with an emergency call.

 

Harassment Restraining Order (HRO)

HROs require a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures.  These acts must have a substantial adverse effect on the safety, security, and privacy of another person.

 

Domestic Abuse No Contact Order (DANCO)

DANCOs are issued by the court when a criminal action is pending or a conviction has been entered when domestic violence has occurred.  A DANCO may also be issued when there is a previous violation of a previous DANCO or OFP.

 


Does it matter who is abusing or harassing me?

Order for Protection (OFP)

Because an OFP 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, a pregnant mother and the alleged father, and persons involved in a significant romantic or sexual relationship.

 

Harassment Restraining Order (HRO)

HROs do not require a relationship with the preparator of the unwanted conduct.  Any person that commits harassing acts may be subject to restrictions under a HRO.

 

Domestic Abuse No Contact Order (DANCO)

Because a DANCO 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, a pregnant mother and the alleged father, and persons involved in a significant romantic or sexual relationship.

 


What does each Order do?

Order for Protection (OFP)

OFPs will restrict contact and require that the preparator surrender firearms. Additionally, OFPs may establish possession of property, custody, child support, maintenance, and may exclude the perpetrator from schools, daycares, and workplaces.

 

Harassment Restraining Order (HRO)

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

 

Domestic Abuse No Contact Order (DANCO)

DANCOs only limit contact between the victim and the abuser.  They are criminal in nature and will not cover the same areas as an OFP.

 


Who can seek each Order?

Order for Protection (OFP)

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

 

Harassment Restraining Order (HRO)

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

 

Domestic Abuse No Contact Order (DANCO)

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

 


Is there a filing fee for these protective orders?

Order for Protection (OFP)

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

 

Harassment Restraining Order (HRO)

The victim of harassing conduct will have a civil filing fee for a HRO. This fee is not required if the alleged acts involve stalking, including a pattern of stalking, a second or additional violation of a protective order, if an aggravating factor is present, or if the incident involved criminal sexual conduct.

 

Domestic Abuse No Contact Order (DANCO)

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

 


Do I need to have a hearing?

Order for Protection (OFP)

Once a petition is filed, the Court must hold a hearing within 14 days if it does not issue an Ex Parte OFP.  If an Ex Parte OFP is entered, the court does not need to hold a hearing unless it is requested by one of the parties.  Respondent must request a hearing within 5 days of service of the Ex Parte OFP.

 

Harassment Restraining Order (HRO)

A hearing is not required if a HRO is issued by the court.  However, either the petitioner or respondent may request a hearing.  The timelines are not as stringent for HROs as they are for OFPs.

 

Domestic Abuse No Contact Order (DANCO)

A DANCO can be entered by a court at any criminal proceeding when pretrial release or sentencing issues are decided.

 


What if my Order is dismissed or I need more than one type of Order?

Order for Protection (OFP)

Even if the court doesn’t enter a civil OFP, the criminal court can still enter a DANCO.

 

Harassment Restraining Order (HRO)

Even if the court doesn’t enter a HRO, the criminal court can still enter a DANCO.

 

Domestic Abuse No Contact Order (DANCO)

Even if the court doesn’t enter DANCO, the civil court can still enter either an OFP or HRO.

 


How long can my Order last for?

Order for Protection (OFP)

A OFP may be issued for a fixed period, not to exceed one year, unless the court believes a longer period is appropriate.  An OFP may be extended or renewed if the perpetrator violated the OFP, the victim is in reasonable fear of physical harm, the perpetrator has engaged in acts of stalking or harassment, or the perpetrator has been incarcerated and is set to be released or was recently released.

 

Harassment Restraining Order (HRO)

A HRO may be issued for any fixed time, not to exceed two years.  However, if the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years.

 

Domestic Abuse No Contact Order (DANCO)

DANCOs generally last for the duration of the respondent's criminal case or probation period and can be issued without the knowledge of the victim.

 


 

General

What is mediation?

Mediation is:

  1. a cooperative problem-solving process;
  2. in which a neutral professional who is trained in both mediation and family law;
  3. helps people in conflict clearly define the issues in dispute;
  4. and to reach agreements that are in the best interests of their family.

How does mediation work?

The disputing individuals (usually accompanied by their attorneys) gather at one office with the mediator. The parties are usually situated in separate rooms, with their attorneys, and the mediator shuttles back and forth between rooms. The mediator guides the communication process and different solutions are explored to help reach the best possible agreement. Some mediators help parties develop options while others offer some suggestions; but the final agreement is always up to the parties.


What types of disputes can be resolved in mediation?

Virtually any issue in conflict between husband and wife is suitable for mediation, including, but not at all limited to:

  1. Custody and parenting time issues;
  2. Child Support;
  3. Insurance issues;
  4. Dependent exemption allocation;
  5. Distributing assets;
  6. Distributing liability for debts;
  7. Spousal support;
  8. Identifying other dispute-resolving processes;
  9. and more.

Do we both have to participate?

Yes and no.

No. No one can force you to participate in mediation.  It is a voluntary process.

Yes.  If you both decide to mediate, you both need to be present and to participate. Mediation is a joint, cooperative problem-solving process, so both spouses need to actively participate. Participants need not feel friendly toward one another but should be willing to work together to find solutions that will meet the needs of everyone involved.


Can mediation help us get back together?

Mediation is not couples counseling. Feelings about the marriage and the decision to separate or divorce may be discussed, however, the focus of mediation is to find solutions and reach agreements so that family members may better adjust to the separation or divorce and resolve future issues as a family. If there are any doubts about the separation or divorce, you should talk with your spouse about counseling as an activity separate from mediation.


Are children involved in the mediation process?

No.


Do I need an attorney?

In our view, it is foolish to attend a mediation unaccompanied by your lawyer.  Mediation is a critical juncture, where the big issues in your life are being resolved.  It is where you will determine how to allocate time with your kids, how to divvy up all the assets and debts you have accumulated, and establish your standard of living going forward.  You don’t want to make a mistake.  An attorney skilled in negotiating, familiar with the legal processes and systems you’ll encounter, experienced in identifying legal, tax, and insurance issues, and aware of creative solutions, will help you avoid mistakes and find the best possible solution.

Mediation is not a substitute for independent legal advice. Lawyers can help their clients understand the law, make informed agreements, draft the final agreement and complete the legal divorce process. The mediator focuses on helping participants reach their own agreements and does not represent either party.


Are mediation agreements legally binding?

Often at the end of a mediation, the involved attorneys will draft, and the parties will sign a formal agreement.  Those agreements are legally binding.

Other times, usually for lack of time, a mediator will prepare a summary of the parties’ agreement.  Those summaries are usually not regarded as binding, in and of themselves, until the attorneys reduce them to a more full-bodied, comprehensive, agreement, and the parties sign.

The parties’ signed agreement is then filed with the court, which incorporates its terms into a final court order or divorce judgment.


What if we cannot work it out?

The mediation process may not resolve all issues, but may still be beneficial.

Sometimes the parties can resolve some issues, which narrows issues and limits the time and expense of going to court. Sometimes a “failed” mediation results in the sharing of information that helps the parties better, more accurately, assess their positions.  They may also help the parties identify information that needs to be gathered before a mediation can resume, or to identify a process for resolving contested issues.  For example, if parties cannot agree how to distribute a piece of real estate because they disagree on its value, they may agree upon a specific individual to appraise it.


How much does mediation cost?

In North Dakota, where children are involved the State provides the parties six hours of mediation, at the state’s expense. Mediators who are privately retained charge an hourly fee, just as each party’s attorney does, which is typically shared by the parties. Mediation is less costly, both emotionally and financially, than litigation.


How do I find a mediator?

In North Dakota, when children are involved, mediation services are available through the state, and are assigned to each case by the state program administrator.  Otherwise, your attorney will help you identify a mediator suitable for your case.


Are there times when mediation is not a good idea?

Mediation may not be the best choice if there are concerns about domestic violence, child abuse, mental illness or abuse of drugs or alcohol. Consult your attorney to determine the best available method of dispute resolution. Mediation works best when both parties can fully express their needs and interests follow through on the agreements that they reach.


What is elder law?

Elder law is a practice area devoted to the needs of a particular type of client as opposed to a particular area of law. While not all elder law clients perceive themselves as elderly, many of them have similar needs. Elder law attorneys must be knowledgeable in many areas of the law, including guardianship, long-term care planning, advance health care directives, powers of attorney, estate planning, Medicare and Medicaid, asset protection, and elder abuse.


Why might I need an elder law attorney?

If you or a loved one is concerned about cost of long term care and how you will pay for it, then you should speak to an elder law attorney. An elder law attorney will be able to explain to you the various methods of paying for long-term care, including the government benefit programs that are available and how to qualify for them.

If you are concerned about planning for a time when you might not be able to make decisions on your own, then an elder law attorney can explain to you the various options that are available to you to make sure your wishes are carried out in the event you become incapacitated. These are just a couple of the many ways an elder law attorney can assist you. There are many more types of situations where an elder law attorney can be helpful. That is why it is so important for you to speak with one to insure your individual concerns can be addressed.


What is Medicare?

Medicare is a federal health insurance programs that provides health care coverage to individuals eligible to receive Social Security and/or railroad retirement benefits who have reached the age of 65.  People who are younger than 65 are eligible for Medicare if:

  • They have received Social Security disability benefits for 24 months; or
  • They are eligible to receive Social Security disability benefits and amyotrophic lateral sclerosis (ALS, or Lou Gehrig’s disease) or chronic kidney disease (there is no 24-month waiting period).

Today there are four parts to Medicare:

  • Part A helps cover inpatient care in hospitals, as well as some home health services. Hospice care, blood transfusion, and skilled nursing facility care;
  • Part B helps cover doctors’ and other health care providers’ services, screenings, ambulatory surgical centers, emergency department services, outpatient care, durable medical equipment, home health care, occupational therapy, telehealth, some transplant drugs, and some preventative services;
  • Part C also called Medicare Advantage, involves certain insurance plans that combine coverage of Parts A, B, and D. Each plan is different, and must be separately evaluated; and
  • Part D helps cover the cost of prescription drugs.

Does Medicare cover the cost of long-term care?

No. This is one of the most common misconceptions of seniors. Medicare covers short-term rehabilitation but does not cover custodial care at home or in a nursing home. Medicare will cover acute illnesses such as heart surgery or strokes, but not chronic illnesses such as Alzheimer’s disease or Parkinson’s disease. If you meet strict requirements, you may receive up to 100 days of Medicare coverage for skilled nursing care in a nursing home; however, there are significant co-payments that will be due. Some people have Medigap insurance policies which cover these co-payments. If you need help with activities of daily living such as eating, bathing, toileting, or transferring in and out of bed, these are considered custodial needs and are not covered by Medicare.


What is long-term care insurance?

Long-term care insurance is designed to cover the cost of long-term care if you need it in the future. In order to purchase a long-term care insurance policy, you must go through the underwriting process of the insurance company. They want to make sure you are in good health and don’t have certain pre-existing conditions prior to issuing the policy. Depending on the type of policy your purchase, you will be required to pay premiums for the rest of your life or for a certain period of years. In exchange for the payment of premiums, the insurance company will cover you, up to the policy limits, for the cost of your long-term care, if necessary. In light of the fact that Medicare does not cover long-term care, long-term care insurance should be considered as part of your overall estate planning.


How much does long-term care cost?

Long-term care is expensive, whether delivered at home, in assisted living or nursing home. Costs vary by geographic region. In some of the major metropolitan areas of the United States, costs can exceed $200,000 per year. These catastrophic costs can bankrupt most middle class families if they don’t plan in advance. An elder law attorney can explain the various options available and help guide you through the long-term care maize so that your family does not go broke paying for long-term care.


How do I pay for long term care?

Basically, there are four ways to pay for long-term care: (a) Private pay, which can cost more than $200,000 per year in some areas, (b) Medicare, which only covers short-term rehabilitation for skilled nursing care and does not cover custodial, long-term care, (c) long-term care insurance, which must be purchased while you are healthy, and (d) Medicaid, which is the only government program that pays for long-term care.

Medicaid was intended to be for people who are destitute. In fact, to qualify you must meet strict income and asset guidelines. This presents middle class folks who have a loved one with a chronic illness with a Hobson’s choice: impoverish yourself and your family, or engage in Medicaid planning. Once you have been diagnosed with a chronic illness such as Alzheimer’s disease, Parkinson’s disease, or some other illness for which modern medicine does not have a cure, you will not qualify for long-term care insurance and Medicare does not pay for your long-term care. Thus, you either pay out of your own pocket for long-term care or you work with an elder law attorney in an attempt to qualify for Medicaid.


When should I engage in elder law planning?

The sooner, the better. We don’t have a crystal ball so we never know when illness will strike. While many of us think of nursing home residents as people who are elderly, a significant number of people who need long-term care are middle age or younger. Thus, it is never too early to plan. Moreover, the government has imposed stringent rules penalizing transfers of your assets prior to entering a nursing home. You may be disqualified from receiving Medicaid if you have made asset transfers during the five-year lookback period prior to applying for Medicaid. An elder law attorney can explain the Medicaid lookback and penalty period rules to you so that inappropriate, disqualifying transfers are not made.


What is a power of attorney (POA)?

A "power of attorney" is a legal document that delegates legal authority to another person. The person who delegates legal authority to another person is called the "principal." The person to whom legal authority is delegated is called the "attorney-in-fact" or the "agent." The use of the term "attorney-in-fact" does not refer to a lawyer. Instead, it refers to any person who is authorized to act for, or on behalf of, another person. Conversely, a lawyer is often referred to as an "attorney-at-law."

A principal can give an agent very broad or very limited powers. In either case, the powers conferred upon an agent are always spelled out in the power of attorney document.


What authority can be given under a POA?

A principal can grant an agent the authority to do virtually anything the principal could do on his or her own. A POA that grants broad powers to an agent is often referred to as a "general power of attorney." A POA that grants only limited or specific powers is referred to as a "special power of attorney." 


Are there different kinds of POAs?

Yes. There are three different kinds in common use today; namely:

  • Durable Power of Attorney
  • Springing Power of Attorney
  • Regular Power of Attorney

Under common law, a power of attorney became effective as soon as it was signed by the principal, and it remained in effect until the principal revoked it or the principal became incompetent or died. Because a POA terminated upon the principal’s incompetency, it was virtually useless as a tool to manage the affairs of the principal during incompetency. For estate planning purposes, this is precisely when a power of attorney was needed most.

Today, a power of attorney that survives the incompetency of the principal is referred to as a "durable power of attorney." or "DPOA."   To constitute a DPOA, most states require that the document contain the following provision - or words of similar intent:

This power of attorney shall not be affected by the subsequent disability or incompetency of the principal, or lapse of time.

A "springing power of attorney" does not become effective as soon as it is signed by the principal. Instead, it becomes effective upon the happening of a specific future event, such as the incompetency of the principal. Many institutions have difficulty accepting a springing POA because it is often difficult to determine if the specific future event has actually occurred. Incompetency, for example, often occurs over a long period of time and it is difficult to determine when someone crosses over the line. For this reason, most professionals will provide in a springing POA that a physician must certify that the principal is incompetent in order for the POA to "spring" into effect.

A POA that is neither a "durable" nor a "springing" power of attorney is simply referred to as a power of attorney. However, some people do refer to it as a "non-durable power of attorney."


When should a durable POA be used?

For the most part, a DPOA is intended to be used in the event the principal is unable to make decisions on his or her own. It is generally thought to be a much better solution that having the courts appoint a guardian or conservator to act for the principal. Many professionals also prefer to use a DPOA even if the power is to be used immediately for a specific purpose, such as for a real estate transfer. In that case, if the principal should become incompetent prior to the occurrence of the specific purpose, then the agent could still complete the transaction.

Consider the following hypothetical: Assume that a principal wants to close on the sale of real property on Friday but can’t be at the closing. On the preceding Monday, he gives his wife a DPOA to act on his behalf. On the following day, the principal is injured in a car accident and is unconscious in a hospital when Friday arrives. On Friday, the principal’s wife completes the transfer on his behalf using the DPOA. If the POA wasn’t durable, the transfer would have been delayed or possibly lost forever.


When should a springing POA be used?

Like the DPOA, a springing POA is intended to be used in the event the principal is unable to make decisions on his or her own. It is generally thought to be a much better solution than having the courts appoint a guardian or a conservator for the principal. The difference is that a durable POA becomes effective as soon as it is signed by the principal whereas the springing power of attorney becomes effective only if - and when - some future event occurs, such as when the principal becomes incompetent. In a perfect world, the springing POA would be far preferable to the durable POA because a springing POA becomes effective only when it’s actually needed. The durable POA presents a little bit of a problem because it becomes effective immediately, even though the principal is fully capable of acting on his or her own. The problem with the springing POA is that it’s very difficult to say when the triggering event occurs. If the triggering event is the principal’s incompetency, how do you know when that occurs? You might require that a physician certify to the principal’s incompetency but, in practice, it becomes a rather messy affair. For this reason, many estate planning attorneys prefer to use the DPOA and have the principal keep all the originals until it’s time for the agent to act.


Who should I name as my agent under a POA?

A POA conveys broad powers to an agent to act on behalf of the principal. In most cases, a durable or springing POA will authorize the agent to perform virtually all acts that the principal could perform on his or her own. Obviously, there is plenty of room for abuse by an agent. While there is some legal recourse against abusive actions of an agent, the best protection is to ensure that a prospective agent has the proper qualifications for the job. The proper qualifications are honesty, integrity, and common sense. To be sure that a prospective agent has these qualifications, the principal should have known the prospective agent for a long period of time and should have had regular dealing with this person. A spouse, a trusted family member, a proven friend, or a professional with an outstanding reputation for honesty and integrity are good candidates. A person with known financial difficulties should not be considered, nor should anyone who is unknown to the principal regardless of reputation.


Can I name more than one person as agent under a POA?

Yes. You can appoint multiple agents if you wish. If you appoint two or more agents, you must decide whether each agent can act separately in managing your affairs or whether they both must act together. Requiring both agents to act together can help protect against abuse, but it also makes it more difficult for the agents to get things done. This is especially true if one agent is local and the other is out of state. One solution is to allow either agent to write checks for the payment of regular recurring bills, but to require both agents to sign for other actions, such as changing investments, signing accounting and tax forms, etc. This is one area where the advice of a professional advisor can be invaluable.


If I have a POA, can I still make decisions for myself?

Yes. The agent named in a POA is only the representative of the principal. As long as the principal is capable of making his or her own decisions, then the principal is free to carry on as though the POA didn’t exist. 


Can my agent make medical decisions for me?

Yes, if that is one of the powers conveyed to your agent under your POA. Most states, however, provide for a health care directive or a health care proxy, which is essentially a POA for health care decisions. This is a separate document from a POA for financial purposes. The preferred practice is to have a durable POA for financial purposes and a health care directive for medical decisions. 


What are advance health care directives?

Advance health care directives are written instructions to your loved ones and caregivers about the type of medical treatment and health care you'd like to receive if you're unable to communicate directly with your health care providers.  Because these statements are made before the medical treatment and health care is actually needed, they are often referred to as "advance directives" or "health care instructions."


What kind of health care instructions are there?

There are two kinds. The first is called a "living will."  The second is called a "durable power of attorney for health care" or a "health care proxy."  Many states authorize others as well; for example, the making of anatomical gifts, the pre-designation of a conservator in the event of future incapacity, and the designation of a custodian for bodily remains. 


Am I required to have all of these?

No. You are not required to have any of these. But, one or more of them is a good way to ensure that your wishes are known if you’re ever in that situation. If your wishes are known, then your medical service providers will know what procedures to follow and your family and friends will be spared the agony of second-guessing what you would have wanted. 


What is a living will?

A living will is a legal document that states your preferences for medical treatment if you are terminally ill or permanently unconscious and unable to actively take part in making decisions for your own life. In that case, the living will states that you want to be allowed to die and not be kept alive through life support systems.  Living wills do not appoint an “agent” to make and express decisions on your behalf.

The term "terminally ill" generally means that you have an incurable or irreversible medical condition that will result in death within a relatively short period of time. The term "permanently unconscious" generally means that you are in a permanent coma or a persistent vegetative state, which is an irreversible condition in which you are not aware of yourself or your environment and show no response to the environment. Under a living will, you can state whether you want - or don’t want - certain life-sustaining procedures, including artificial respiration, cardiopulmonary resuscitation, and artificial means of providing nutrition and hydration.


Can I decide what treatment I want under a living will?

Yes. That decision is entirely up to you. But, it’s an important decision, so most professionals recommend that you discuss the available options with your loved ones and your professional advisors. Some people don’t feel comfortable making a living will, while many others do.


What is artificial nutrition and hydration?

Artificial nutrition and hydration refers to the use of artificial means to feed and hydrate a person who is not able to eat and drink on his own. It generally includes giving food and water through an intravenous catheter (commonly called an "IV") or through a nasogastric tube.


What is a durable power of attorney for health care?

A "durable power of attorney for health care" is a legal document in which you name another person as your agent to make health care decisions for you. A durable power of attorney for health care is exactly the same as any other durable power of attorney except that it pertains only to your health care, not financial matters. You can include instructions about the types of medical treatments you want - or don’t want. The following are a few examples of the types of things you can include: Your personal goals, values and preferences; the types of medical treatment you would want - or don’t want; how you want your agent to make decisions; where you want to receive care; instructions about artificial nutrition and hydration; mental health treatments; organ donations; funeral arrangements; and whom you would like to have as a guardian or conservator of your person if one is to be appointed for you. You can be as general or as specific as you like, because it is your directive to your designated agent. 


Who should be my agent for health care?

This is a very important question. Whomever you decide to name as your agent under your durable power of attorney for health care, it should be someone you know very well. It should also be someone you respect and someone who’s judgment you value. Moreover, the person you name as your agent should be somewhat knowledgeable about medical issues, although it’s not necessary that this person have any medical training. This person should also have a good understanding of who you are and what your values and feelings are. After all, this person could be stepping into your shoes to make the very difficult medical decisions that you would have to make for yourself if you were able to do so. Most professionals recommend that you name only one person to serve as your health care agent. Even so, you should also name an alternate in case your first choice is unable or unwilling to act for you. Many individuals also have two or more children and they don’t want to name just one child as their health care agent because it may slight the others. If only one of your children lives close to you or if only one of your children is able to act for you, then name just that one as your health care agent, with one or more of the others as alternates. If that is not the case, then you should consider naming all of them as your health care agents in order to avoid slighting any one of them. Of course, these are issues that many people struggle with. But, most people agree that it’s better to have the struggle before you actually need someone to make these health care decisions for you.


Can I name more than one agent to act for me?

Yes. As stated above, you can appoint as many agents as you would like. However, if you appoint more than one agent, then you should specify whether each agent can act separately or whether they all must act collectively. There are advantages and disadvantages to both forms of appointment. Requiring your agents to act collectively can safeguard the soundness of their decisions, but it may be very difficult for all of them to agree on every decision. If any one of them can make decisions for you, that may be much easier to get things done, but it may also cause serious disagreements among them if they are not told in advance. Another option is to appoint only one agent, with another named as an alternate in case the first named agent is unable to act for you. 


If I want to donate my organs, what should I do?

You may put a statement to that effect in your durable power of attorney for health care. You should also check with your state to determine whether it has a statewide organ donor system in place. Some states provide for notification of organ donors on its driver’s licenses. You should also notify your spouse, family, friends and personal physician of your intentions regarding organ donations.


How do I make these health care instructions?

There are forms available for this purpose. Some states even have specimen forms that are available free of charge. But, you don’t have to use a form if you don’t want to. You can write out your wishes on a separate piece of paper, or you can get a sample form from the library or from the internet - without having to pay a fee. Most attorneys provide these forms as well and, generally, are included as part of your overall estate planning at no additional charge. 

There are some legal requirements, though, that you must comply with in order to create a legally binding document: You must be at least 18 years of age at the time you sign the document. The document must be in writing. It must state your name. It must be signed by you or by someone authorized to sign for you. Your signature must be witnessed by two witnesses and your signature must be notarized by a notary public. It should include the name, address and relationship to you of each person you designate as your agent for health care decisions and, if you designate more than one, whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately. If you wish to make such a pre-designation of a guardian or conservator for future incapacity, it should include the name, address and relationship to you of each person you pre-designate as your guardian or conservator. If you designate more than one person, you should indicate whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately.


Will these documents be valid in other states?

Yes, these documents are valid in all 50 states as long as they are valid in the state in which they are executed. However, if you move permanently to another state, it’s a good idea to review these documents to ensure that they fully comply with that state’s requirements.


How long will my advance directives last?

There is no time limit for these documents.  Generally, they will last until you change them or terminate them. You may change them at any time and from time to time by simply signing new documents. It is always a good idea to destroy your old documents so that they aren’t confused with your new ones. You may also terminate them at any time by:

  • Signing a written statement to that effect.
  • Destroying the original and all copies.
  • Telling at least two people that you are terminating them.
  • Writing new instructions.

Must a lawyer create my advance directives?

No. But, if you have any questions about any of these documents, particularly the people you should appoint as your health care agent, then it is advisable that you consult with someone who is knowledgeable about such matters. Estate planning attorneys are often well versed in such matters because they have been through it many times with their clients…and, maybe, even their own family members.


Does everyone have an “estate”?

Yes.  Nearly everyone has an estate, including you.

Your estate is made up of everything you own— your car, home, other real estate, checking and savings accounts, investments, life insurance, furniture, personal possessions. Whether large or modest, everyone has an estate and something else in common—you can’t take it with you when you die.


Why should I have an estate plan?

When that happens—and it is a “when” and not an “if”—you probably want to control how your assets are given to the people or organizations you care most about.

To ensure your wishes are carried out, you need to provide instructions, stating to whom you want to leave your assets, what you want them to receive, and when they should receive it. In the process, you’ll want avoid taxes, legal fees, and court costs.

That is estate planning—making a plan in advance and naming whom you want to receive the things you own after you die.

Does a good estate plan do anything other than distribute my assets?

Yes!  In addition to distributing things, a good estate planning should:

  • Include instructions for passing your values(religion, education, hard work, etc.) in addition to your valuables.
  • Include instructions for your care if you become disabled before you die.
  • Name a guardian and an inheritance manager for minor children.
  • Provide for family members with special needs without disrupting government benefits.
  • Provide for loved ones who might be irresponsible with money or who may need future protection from creditors or divorce.
  • Include life insurance to provide for your family at your death, disability income insurance to replace your income if you cannot work due to illness or injury, and long-term care insurance to help pay for your care in case of an extended illness or injury.
  • Provide for the transfer of your business at your retirement, disability, or death.
  • Minimize taxes, court costs, and unnecessary legal fees.
  • Be an ongoing process, not a one-time event. Your plan should be reviewed and updated as your family and financial situations (and laws) change over your lifetime.

Is estate planning just for old people?

No. Estate planning is not just for seniors and retirees, although people do tend to think about it more as they get older. It is for anyone with children, and provides for them in the event of parents’ premature death or disability.

Of course, none of us can predict when our day will come.  Illness and accidents happen to people of all ages.


Is estate planning just for rich people?

No. Estate planning is not just for “the wealthy,” either, although people who have built some wealth do often think more about how to preserve it. Good estate planning often means more to families with modest assets, because every dollar is more precious to them, and they have the least to lose.


What happens if I don’t have an estate plan?

If you don’t have an estate plan, the state has one for you…and you and your family will be stuck with it.

At your death: If you die without an estate plan, your assets will be distributed according to the probate laws in your state. In many states, if you are married and have children, your spouse and children will each receive a share. That means your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance. If both parents die (e.g., in a car accident), the court will appoint a guardian without knowing whom you would have chosen.

At disability: If your name is on the title of your assets and you can’t conduct business due to mental or physical incapacity, only a court appointee can sign for you. The court, not your family, will control how your assets are used to care for you through a conservatorship or guardianship (depending on the term used in your state). It can become expensive and time consuming, it is open to the public, and it can be difficult to end even if you recover.

Would you like these matters be handled by your family, according to your instructions…or by the courts? Would you like to control who receives what and when…or leave it to the state? If you have young children, would you like to control who’ll raise them if you can’t…or will a judge’s selection do?


Where does an estate plan start?

An estate plan begins with a will or living trust.

A will provides your instructions, but does not avoid probate. Any assets titled in your name or directed by your will must go through your state’s probate process before they can be distributed to your heirs. (If you own property in other states, your family will probably face multiple probates, each one according to the laws in that state.) The process varies greatly from state to state, and can become expensive with legal fees, executor fees, and court costs. It can also take anywhere from nine months to two years or longer. With rare exception, probate files are open to the public and excluded heirs are encouraged to come forward and seek a share of your estate. In short, the court system, not your family, controls the process.


Do all of my assets have to go through a probate process when I die?

No. Not everything you own will go through probate. Jointly-owned property and assets that let you name a beneficiary (for example, life insurance, IRAs, 401(k)s, annuities, etc.) are not controlled by your will and usually will transfer to the new owner or beneficiary without probate. But there are many problems with joint ownership, and avoidance of probate is not guaranteed. For example, if a valid beneficiary is not named, the assets will have to go through probate and will be distributed along with the rest of your estate. If you name a minor as a beneficiary, the court will probably insist on a guardianship until the child legally becomes an adult.


Is there an alternative to using a Will to distribute my estate?

Yes.  A revocable living trust is preferred by many families and professionalsA revocable trust:

  • can avoid probate at death (including multiple probates if you own property in other states);

  • can prevent court control of assets at incapacity,

  • can bring all of your assets (even those with beneficiary designations) together into one plan,

  • can provide maximum privacy,

  • is valid in every state,

  • can be changed by you at any time; and

  • can also reflect your love and values to your family and future generations.

Unlike a will, a trust doesn’t have to die with you. Assets can stay in your trust, managed by a trustee you select, until your beneficiaries reach the age you want them to inherit. Your trust can continue longer to provide for a loved one with special needs, or to protect the assets from beneficiaries’ creditors, spouses, and irresponsible spending.

A living trust is more expensive initially than a will, but because it can avoid court interference at incapacity and death, many people consider it to be a bargain.


Are there any other side-benefits to creating an estate plan?

Yes. Planning your estate will help you organize your records and correct titles and beneficiary designations.

Would your family know where to find your financial records, titles, and insurance policies if something happened to you? Planning your estate now will help you organize your records, locate titles and beneficiary designations, and find and correct errors.

Most people don’t give much thought to the wording they put on titles and beneficiary designations. You may have good intentions, but an innocent error can create problems for your family at your disability and/or death. Beneficiary designations are often out-of-date or otherwise invalid. Naming the wrong beneficiary on your tax-deferred plan can lead to devastating tax consequences. It is better for you to take the time to do this correctly now than for your family to pay an attorney to try to fix things later.


Is estate planning expensive?

If you don’t think you can afford a complex estate plan now, start with what you can afford. For a young family or single adult, that may mean a will, term life insurance, and powers of attorney for your assets and health care decisions. Then, let your planning develop and expand as your needs change and your financial situation improves. Don’t try to do this yourself to save money. An experienced attorney will be able to provide critical guidance and peace of mind that your documents are prepared properly.


When is the best time to create an estate plan?

Right now.

None of us really likes to think about our own mortality or the possibility of being unable to make decisions for ourselves. That’s why so many families are caught off-guard and are unprepared when incapacity or death strikes. Don’t wait. You can put something in place now and change it later…which is exactly the way estate planning should be done.


When it comes to estate-planning, what is the best benefit of all?

The best benefit is peace of mind.

Knowing you have a properly prepared plan in place—one that contains your instructions and will protect your family—will give you and your family peace of mind. Creating an estate plan may be one of the most thoughtful and considerate things you can do for yourself and those you love.


What is Probate?

Generally speaking, “probate” is the process in which an individual's estate is concluded upon death, including the collection of assets, payment of debts, and the distribution of the balance of the decedent's assets to the beneficiaries. A probate proceeding effectively passes title of a decedent’s assets to those entitled to them. Also commonly referred to as “estate administration”, probate is the method by which the rights of all interested parties in a decedent’s estate are determined. “Interested parties” includes heirs (those entitled to inherit by state law in situations where no Will exists or the Will does not cover all assets governed by the Probate Court), Will beneficiaries, creditors, and taxing authorities.


What is the purpose of Probate?

The purpose of probate is to determine who is rightfully entitled to the property of the deceased, including creditors.  The probate process is also used to appoint a Personal Representative to administer the estate. In some situations, the probate process is used to determine the validity of a Will.


Are all probate proceedings the same?

No. A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the Uniform Probate Code (which include both North Dakota and Minnesota) on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding.


What does the probate process involve?

The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the Will and a petition to admit the Will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the estate. The personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, should the need arise.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it may be declared void, and the testator's property will pass according to the laws of descent and distribution (also known as “intestacy”).

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.


Is hiring a Probate Attorney necessary?

No, but most people choose to hire an attorney because the process can be very difficult for someone not legally trained and without the necessary legal knowledge.


How long does Probate take?

Probate will likely take at least 6 months after the initial court date to open the estate. A more realistic minimum time would be 9 to 12 months. Probate can take a great deal longer depending upon issues that arise including claims, disputes between beneficiaries, and the need for an ancillary estate. If an estate tax return is required to be filed, then the estate will likely remain open for at least 18 months.


How expensive is Probate?

The expenses involved in Probate generally include legal fees and court costs. Legal fees are generally based on the time involved. The more complex the estate the greater the legal fees. Costs include filing fees, publication fees, and surety bonds.


Is a Personal Representative entitled to compensation?

 

Yes, every personal representative and administrator is entitled to receive a reasonable fee for his or her services.


Is a person named as Personal Representative in a Will required to serve?

No, you are not required to accept the role of Personal Representative.


What is ancillary probate?

Ancillary probate is probate in a state other than the decedent's domiciliary estate. The majority of the decedent's estate is probated in the state of his primary residence, however if the decedent owned real property in another state, it will be necessary to open an ancillary probate estate in the other state.


What are “Letters Testamentary”?

"Letters Testamentary" are documents issued and certified by the probate court to the Personal Representative of an estate which are the proof of the Personal Representative's authority to act on behalf of the estate.


What does the Personal Representative do?

The Personal Representative (also referred to as the “Executor”) is the individual who has been specifically named in the Will of the deceased person to serve as the administrator of the estate. The Personal Representative must collect all of the estate assets, pay the final debts of the deceased individual, and make distributions of the estate assets pursuant to the terms of the will. In short, the Personal Representative must faithfully follow the provisions of the will as laid out by the deceased person.

In addition, the Personal Representative typically hires an attorney to assist in the administration of the estate due to the complexities involved with the probate process. The attorney can provide the necessary instructions to carefully carry out the terms of the will and the provisions of the Probate Code. The attorney can also defend the Personal Representative in probate court with regard to any attacks against the Personal Representative's actions in handling the administration of the estate.


What if there is no Will?

If a person dies without a Will, and an “intestate” probate action is necessary. In an intestate probate action, an interested party can petition the court to serve as the personal representative for the estate. They may need to obtain a surety bond to serve as the estate representative, and notice will need to be sent to the relevant heirs regarding the intestate estate.


What is a Will contest?

A will contest is a legal action that challenges the validity of a will and/or the terms of the will. Will contests typically involve allegations that a will was inadequately executed, invalidated by a later will, or was the result of forgery or undue influence.


Are there ways to avoid Probate?

There are several ways to avoid the probate process. These methods include creating a joint ownership with right of survivorship in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death bank accounts and transfer-on-death securities; and placing property in a revocable living trust. Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.


What are the advantages of avoiding Probate?

The probate process can be slow, and can tie up property anywhere from several months to several years. In addition, it can be costly since attorney fees, executor fees, and court fees are paid out of the estate.


Are there simplified procedures for small estates that are subject to Probate?

Yes. Most states, including both North Dakota and Minnesota have simplified procedures which can be used to administer relatively small estates. This procedure is generally available in North Dakota when the augmented estate is less $50,000, and in Minnesota when the augmented estate is less than $75,000. 


What is a guardian?

A guardian is someone who has been given legal authority by a court to make personal decisions for an individual who is incapable of making his or her own decisions.


What is a ward?

A ward is a person who has a guardian.


What is guardianship?

Guardianship is a legal arrangement under which a guardian, appointed by a court, has the legal right and duty to care for another, the ward.  A guardian is appointed because of the ward’s inability to legally act on his or her own behalf due to minority or mental or physical incapacity. A guardian has the powers and duties over the ward’s person.


What is conservatorship?

A conservatorship is similar to a guardianship except that the conservator, again appointed by the court, has powers and duties over the incapacitated person’s estate.


What is a conservator?

A conservator is someone who has been given legal authority by a court to handle the financial affairs of an individual who is unable to manage his or her own finances.


What is a “protected person”?

A protected person is a person who has a conservator.


Who is a conservator?

The court will appoint a conservator when it determines someone can’t manage his or her own finances usually due to a medical condition such as a developmental disability, dementia, brain injury or stroke. The court appoints a conservator when there is a need to pay for care, manage money or recover stolen assets and when there is no less restrictive alternative than a conservatorship. The conservator acts as an agent of the court. The conservator is responsible to conserve and manage the protected person’s estate and accounts to the court for the management of the estate.


What are the powers and duties of a guardian or conservator?

Guardians and conservators must exercise their powers in the best interest of the ward or protected person. The powers and duties of a guardian or those which the court may grant to a conservator include, but are not limited to:

Powers and Duties of the Person:

  • The power to have custody of the ward and the power to establish a place of abode.
  • The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
  • The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
  • The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
  • The power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make, if no conservator had been appointed for the ward.
  • The duty and power to exercise supervisory authority over the ward.
  • The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the ward.

Powers and Duties of the Estate:

  • The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
  • The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
  • The duty to possess and manage the estate, collect all debts and claims in favor of the protected person and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule.
  • The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
  • The power to apply for government assistance on behalf of the protected person.

How is a guardianship or conservatorship established?

Any person may petition for the appointment of a guardian or conservator. The petition is filed in probate court in the county where the proposed ward or protected person lives. The court will appoint an attorney to represent the proposed ward or protected person if necessary. A court hearing is required and notice of it must be served at least 14 days before the hearing upon the proposed ward or protected person, and upon certain family members, and other interested parties.

The proposed ward or protected person must present at the hearing unless that person waives the right to appear in person or otherwise can’t be physically present. If the court finds that a guardian or conservator is needed, and no less restrictive alternative is appropriate, it will issue an order. The court may order the conservator of the estate to post a bond before “letters of conservatorship” are issued. Letters of guardianship or conservatorship are evidence of the guardian’s or conservator’s authority to act on behalf of the ward or protected person.


What are a guardian’s or conservator’s duties?

Within two months of appointment, a conservator of the estate must file with the court an inventory of the protected person’s real and personal property. A court order, after hearing and notice, is required before a conservator of the estate may sell, mortgage, or lease real property of the protected person. The guardian must give notice by mail to the ward and interested persons prior to the disposition of the ward’s clothing, furniture, vehicles, or other personal effects.

Within 30 days of the anniversary of the appointment date, the conservator of the estate must file an annual accounting with the court. Every guardian or conservator must annually serve notice to the ward and protected person of the right to petition for restoration of capacity, discharge of guardian or conservator, or modification of the orders of guardianship or conservatorship. The guardian must annually file a report regarding the ward’s personal well-being with the court within 30 days of the anniversary date of the appointment.


What protections are there under guardianship?

Guardians are under the court's supervision.  Guardians must file an annual Guardian Report with the court, indicating any changes in the ward's situation, any limitations that have been placed on the ward's communication or visitation rights, the adequacy of the ward's care, number of guardian visits, and whether the guardianship is still necessary.

Concerns regarding the actions of a guardian can be addressed to the probate court that appointed the guardian or by filing a complaint of abuse or neglect of a vulnerable adult with the county's adult protection unit.  In the event of mismanagement or theft, a claim can be made against the conservator's bond by petitioning the court.


What protections are there under conservatorship?

Conservators are under the court’s supervision. After appointment, a conservator is required to file with the court an inventory of the protected person’s assets. Every year thereafter, the conservator files an accounting to the court which lists all of money that has come into the estate and all the money that has been paid out of the estate. Verifications of assets and expenditures are also filed. The court audits the accountings. Periodically the conservator appears in front of the court to review the accounting. The accountings are public information and can be reviewed by any concerned person.

Concerns regarding the actions of a conservator can be addressed to the probate court that appointed the conservator or by filing a complaint of abuse or neglect of a vulnerable adult with the county’s adult protection unit.


Who pays for the cost of the guardianship/conservatorship proceedings?

Court costs, attorneys' fees for both the petitioner and the proposed ward/protected person, and any ongoing guardian fees are all paid from the protected person's estate.  Guardians and conservators are allowed to charge a fee for their services.  When the ward has no money to pay for guardianship or conservatorship services, the county court or social services department may have a policy regarding paying for some of these costs.


Are there alternatives to guardianship?

Informal assistance from trusted family and friends, appointment of a health care agent in a Health Care Directive, private or county case/care managers can all be effective ways to assist the person needing help without the burden and expense of guardianship.


Are there alternatives to conservatorship?

Informal assistance from trusted family and friends, powers of attorney, trusts, authorized representatives for economic assistance applications, automated bill payments or banking services, and representative payees for Social Security, Veteran Administration or railroad retirement income can all serve as effective alternatives to conservatorship. Your county may have other options for money management for people with low income.


Do I need to obtain guardianship for my adult child who has disabilities?

While both North Dakota and Minnesota law provides a process for obtaining guardianship for a child with a developmental disability who is about to turn 18, this is not always necessary.  Parents are often advised to seek guardianship in such circumstances, and are often told that they won’t be able to talk to their son or daughter’s medical providers, that they won’t be able to stop their offspring from entering a contract, that the adult child will no longer have access to governmental or educational services, or that they will be unable to be involved in their adult child’s life unless they are appointed legal guardian.

In many situations, though, the reality is that parents and other relatives can remain active and involved, without the expense and hassle of seeking the court appointment of a guardian.

For example, if the adult child is agreeable, the parent can still accompany him or her to all medical appointments; better yet, have the adult child sign a Consent for the Release of Information, allowing professionals involved in the adult child’s care and services to openly communicate with the parents or other individuals of the person’s choosing.

Even better, the adult child could sign a Health Care Directive, appointing his or her parent, sibling, or other individual to be the health care agent.   This would allow the agent to freely communicate with medical care providers, review the adult child’s medical records, and make health care decisions, including deciding where the adult child will live and receive care.  Even a person with cognitive disabilities may still have sufficient ability to understand that signing the document means he or she is giving the named agent the authority to make medical decisions, now or in the future.

If it is believed that guardianship is the only way to ensure the adult child’s care and safety needs are met, contact an attorney who specializes in guardianship.  For a proposed ward who does not financially qualify for Medical Assistance, the adult child’s own assets will be required to pay the costs of establishing and maintaining the guardianship.  If the adult child does not have sufficient assets to pay for these costs, some counties may require the parents to pay them.


Can my loved one receive governmental services even if he or she does not have a guardian?

Yes.  There is a common misperception among professionals conducting assessments to determine eligibility for county or state programs, or for admission to a care center, that an incapacitated or disabled person must have a guardian to receive services.  This is not accurate.  Incapacitated persons and persons with disabilities receive services regardless of guardianship status.


Who serves as guardian or conservator?

Whoever the court determines is in the best interests of the ward or protected person. The factors considered are the current guardian, kinship, and the reasonable preference of the ward or protected person. The court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator. Guardians and conservators must also submit to a criminal history and maltreatment records background check unless they are a government entity, bank, or a parent of a person with diminished mental capacity.


What do I do if I do not agree with my guardian or conservator?

If you are concerned about the actions or decisions of a guardian or conservator, first talk with the guardian/conservator directly about your concerns and work toward a resolution.  Many issues may be resolved through respectful communication.

This might include clarifying the role and limits placed on the guardian/conservator; finding a compromise that both parties can live with; or developing plans to address the problem and reevaluate later.  It may be helpful to first write down your concerns, clarifying in your own mind what the issues are to help keep the conversation focused when you talk to the guardian/conservator.  If it is an Organization serving as the guardian/conservator, inquire if they have a grievance procedure and follow that process.

Sometimes the problem is based on a breakdown of communication or the situation has become too emotion-laden to deal directly with the guardian/conservator.  In this instance, a third party mediator may be of assistance.  This could be a qualified mediator or other third party.

You may want to raise your concerns with the guardian/conservator’s attorney if you feel you are getting nowhere with the guardian/conservator.  Remember, this action will likely result in a bill for the ward/protected person for the attorney’s time. If you don’t know who this is, contact the probate court to find the name of the guardian/conservator’s attorney, also called “the attorney of record.”

Sometimes issues simply cannot be resolved, and the parties must agree to disagree.  However, in rare circumstances, there may be an irreparable breakdown, such that the guardian/conservator can no longer be effective in helping the ward/protected person.  The ward/protected person has the right at any time to contact the county probate court to request a change in guardian/conservator, though this is generally ill advised before attempts to resolve the problem with the existing guardian/conservator.

You may decide you want a new guardian/conservator appointed and while this may be appropriate in some situations, remember that:

  • If the current guardian/conservator does not agree to resign, you will have to prove to the court that the guardian/conservator has acted improperly, or not in the best interest of the ward/protected person before the court will remove the person and appoint a different guardian/conservator.  This could be time-consuming and expensive.
  • A new guardian/conservator will still be in charge and responsible for court-appointed areas of decision-making.  If the nature of the concern is about having a guardian/conservator in the first place, it may make more sense to continue trying to work with the existing guardian/conservator rather than go through the expense and hassle of seeking a successor guardian/conservator.

When does a guardianship or conservatorship end?

A guardianship or conservatorship of an incapacitated adult will probably last as long as she lives. It could be ended, however, if she regains the ability to make decisions. A financial conservatorship might be ended if she no longer has any assets to deal with.

Although the guardianship or conservatorship itself will probably continue as long as your family member lives, the person serving as guardian or conservator might change. This could happen if the guardian or conservator dies, moves away, or otherwise can no longer serve in such capacity. A judge could also replace the guardian or conservator with someone else if they repeatedly make poor decisions or neglects his duties. A family member or any other interested person could request a change by filing papers with the court detailing the reasons the guardian or conservator should be replaced.


What happens if the guardian or conservator mishandles my family member's affairs?

A conservator is not financially responsible for poor judgment in handling financial matters. The conservator would only be held personally responsible if it were shown to a judge that the conservator was stealing or otherwise committing fraud, or had recklessly risked the person's assets.

If you or other family members think the conservator is consistently making bad decisions for your family member -- either financially or in terms of her personal care -- you can file court papers that raise these issues and have a judge decide whether the conservator should be replaced.


What are the pros and cons of guardianships and conservatorships?

Here are some advantages and disadvantages to setting up a guardianship or conservatorship for someone:

Advantages

  • Lets family members know that someone is making decisions;
  • Gives clear legal authority to deal with third parties;
  • Provides a process to have a judge approve major decisions;

Disadvantages

  • Costly to set up, requiring a lawyer, legal papers, and a court hearing;
  • Time-consuming, including extensive ongoing paperwork;
  • Can be humiliating for an older adult who is still somewhat capable;
  • Can be emotionally difficult if family members disagree about who should be guardian and conservator;

When would a guardianship or conservatorship be a good idea for a family member?

In general, two things must combine to make a guardianship or conservatorship appropriate. One, the person must be physically or mentally incapable of making important decisions for herself. The other circumstance is that she doesn't already have legal documents (such as a living will and a power of attorney for finances) that cover decisions about her personal and financial matters.

  • If she hasn't prepared a power of attorney for finances, she might need a conservator of the estate.
  • If she doesn't have a medical directive or living will, she might need a guardianship to make healthcare decisions.
  • Even if she has a medical directive, she might still need a guardianship to decide health matters that aren't covered in the medical directive (if the medical directive doesn't already name an agent to make those decisions).
  • Even if she has a power of attorney for both health care and finances, she might need a guardianship to make decisions about her personal life -- where she's to live, for example, or who's allowed to spend time with her.

How do I set up a guardianship or conservatorship for a family member?

A guardianship or conservatorship requires the filing of formal legal papers, followed by a court hearing in front of a judge. Legal pleadings must clearly spell out her physical or mental condition and her inability to make decisions. Family members might have to be notified and given a chance to file their own paperwork with the court, either supporting or contesting the proposed guardianship/conservatorship or the proposed guardian/conservator. The proposed ward must be given a chance to contest the guardianship or conservatorship if she can and wants to. For all of this, you'll likely need the help of a lawyer with guardianship and conservatorship experience.


How does a judge decide that someone can't make decisions for herself?

It's not always easy to determine whether someone is capable of making decisions. In some cases, it's obvious that a guardian and conservator is necessary -- for example, for a person who's unconscious or semiconscious, or who has advanced Alzheimer's or other forms of dementia. But many other people have physical or mental limitations that diminish but don't totally erase their decision-making capacity. In that case, a judge must weigh opinions and options.

  • If she can communicate, a judge may want to speak directly to her, or have a special court officer do so, in addition to reading reports from doctors and family members. The judge or court investigator will ask whether she understands the court proceedings, whether she wants a conservator, and whether she feels she can make her own decisions.
  • If, after a preliminary investigation, it's still not clear whether she needs a conservator, or who that conservator should be, the judge may appoint a separate lawyer to represent her in the court proceedings.
  • The judge might appoint a conservator but limit the conservator's authority to certain decisions only, with other decisions requiring a further court hearing.

Are guardians and conservators compensated?

Normally, you or another family member who acts as your family member's guardian or conservator would not be paid for performing those duties, although expenses are reimbursed out of her funds. A professional conservator would be paid, and it's up to the judge to decide how much.

In some circumstances, the job of being conservator is very time-consuming and seriously restricts other work the conservator could do. In that case, a special request to the judge can be made for payment to a family member who's acting as conservator.


Are there different types of guardianship?

Yes.  There are two types of guardianships, a full guardianship and a limited guardianship. Under a full guardianship, the guardian is given the authority to make most decisions for you including:

  1. where you live;
  2. medical treatment;
  3. legal matters;
  4. financial matters;
  5. educational and vocational matters.

Under a limited guardianship, the guardian is given the authority to make only those decisions which you are unable to make. For instance, a limited guardian may be given the authority to arrange for medical treatment but not decide where you will live.


Will I know if someone seeks a guardianship over me?

Yes. You and your closest relatives must be notified in writing.  If you do not want this to happen, you can challenge the action. As a proposed ward or protected person, you still have certain legal rights.  These rights include, but are not limited to:

  • The right to have (and participate in) the guardianship and conservatorship hearing; 
  • The right to consult an attorney;
  • The right to have your attorney present during the hearing;
  • The right to bring witnesses to testify for you.
  • The right to have your own doctor testify;
  • The right to have your attorney ask questions of the witnesses against you.

What rights do I have as a ward or protected person under a guardianship or conservatorship?

In addition, the ward or protected person maintains certain legal rights even after a guardianship or conservatorship is implemented.  There may be some limits depending on the orders from the court, but in general, a ward or protected person has the right to:

  • Be treated with respect.  This includes respecting about medical preferences and religious beliefs;
  • Get needed medical treatment in a timely manner;
  • Control the things in life that have not been ordered by the court to be someone else’s responsibility;
  • Have a guardian or conservator who meets their needs;
  • Ask the court if they want to change where they live or keep someone from moving them;
  • Decide what should be done with personal belongings like clothes, furniture, vehicles.  They also have the right to ask the court to review a guardian or conservator’s plans to deal with their personal belongings;
  • Personal privacy;
  • Choose who they want to talk to or have visit them (unless there is reason to believe that that the visit may cause harm to safety or health);
  • Marry and have children.  A ward or protected person has the right to consent or object to sterilization;
  • Ask the court to end or change the guardianship or conservatorship;
  • Be represented by an attorney in any proceeding, including helping them to ask the court for changes;
  • Vote;
  • Make a Health Care Directive and appoint a health care agent;

Who should have a prenuptial agreement?

Well, prenups aren’t just for the rich.  Many others should have them, too.  We can think of at least twelve kinds of people who should have prenuptial agreements in place before marrying:

  1. People Who Like to Control Their Own Affairs. You know the statistic, don’t you? Approximately half of all marriages end in divorce. That means, when a couple marries, the odds of their marriage surviving are the same as a coin flip.

    Most soon-to-marry couples might think not having a prenuptial agreement means there is no plan in place should they divorce. Not true. There is a plan in place. Unfortunately, it’s the state’s plan, based on the state’s sense of what is fair.

    As it turns out, especially in North Dakota, hardly anyone thinks the state’s approach makes sense. For example, in North Dakota, the estate that you inherited—or might someday inherit—is at risk of being distributed to your spouse in a divorce.

  1. People Who Might Inherit Well. Though you may not have much now, maybe you stand to someday inherit a decent estate from your parents or other family members. Look out! Without a prenuptial agreement in place, that inheritance could be divided in your divorce.

    Unlike other states, North Dakota doesn’t protect inheritances and doesn’t require divorce courts to award those assets to the inheriting spouse. Minnesota does protect such assets, but not with 100 percent certainty.  For example, in Minnesota, income earned from your nonmarital assets is deemed “marital” and will be divided during a divorce.

    Is your son or daughter getting married soon? Do you want to make certain their partner doesn’t end up with all, or part of, the estate you leave behind? Then talk to them about the need for a prenuptial agreement.

  1. People With Kids. Along those same lines, maybe this is your second marriage, and you have children from your first. Whether you’re “rich”—or even if you’re not—you probably want your kids to end up with whatever you’ve accumulated, not their ex-spouse.

    Without an agreement in place, if you divorce your second spouse, those assets might go to him or her. Then, in time, your assets will make their way to your new spouse’s children, not yours.

    Even if your second spouse has no desire to claim any portion of your premarital estate, your kids might still suspect it. Resentments might brew and fester. A prenuptial agreement might help keep family peace.

  1. People Who Earn More Than Their Partner. Maybe you aren’t rich just yet. But it’s possible you’ve worked hard to be rich someday. If you are about to acquire a degree, or make a deal, or buy or build the next big thing, maybe you’d like to keep the fruits of your own labors should your marriage fail.

  1. People Who Earn Less Than Their Partner. Do you intend to be a stay-at-home parent? Well, if your marriage fails in middle age, your partner will have spent all those years climbing corporate rungs and reaching upper income levels. In the meantime, you may have little more than an entry-level earning capacity.

    All those years you spend at home frees your spouse to increase his or her earning capacity. If the marital partnership ends, should only one partner end up with 100 percent of that “asset”?  If so, your partner’s post-divorce net income will continue its upward arc. Yours may flat-line…or worse.

    A prenuptial agreement can provide essential protection.

  1. People Who Own a Business. Without a prenuptial agreement, not only will your spouse likely be awarded half of what your income brought to the marital estate, but half of your ownership interest in the business, too (or its value).

    For example, do you make your living from the farm land and implements you own? Do you make money from any kind of self-employment assets? Well, if you divorce, you may need to “buy” those assets again. This time, though, your payments will be to your ex.

  1. People Whose Partners Have Debts. Does your fiancé have student loans? High credit card balances? Outstanding 401K loans? Medical debts? Well, beware! In the event of a divorce, you might end up being responsible for those liabilities, too, in one way or another. A prenuptial agreement can help.

  1. People Who Want Protection from Their Partner’s Unhealthy Behaviors. A surprising number of marriages fail due to mental health issues, often related to compulsive or addictive behaviors. Addictions can cost tens of thousands—for the habit itself, treatments, attorney’s fees, lost wages, criminal fines, and fees.

    A prenuptial agreement can keep your money safe if your partner engages in such unhealthy behaviors.

  1. People Who Like to Go into Things With Their Head Up. You have never entered a relationship as important as this one. Shouldn’t it be preceded with some conversation—even agreement—about financial goals, obligations, and expectations?

    Will all of your income, and your spouse’, be deposited in one account? Or will you keep your respective earnings in separate accounts?

    Will your income be devoted to payment of household expenses, while hers is saved and invested?

    Do you have the same standard of living expectations? Have you talked about your monthly budget? Do you have net worth goals? Savings goals? Charitable giving desires? Does your partner share them?

    Even though having the “prenup talk” might be hard, it might well be one of the wisest, healthiest conversations you ever have.

  1. People with Heirlooms: A prenuptial agreement invariably lists treasured assets and assures they remain with the person who brought them into the marriage. Make sure Grandma’s treasures, Mom’s jewelry, and Dad’s shotgun all stay with you.
  1. People Who Don’t Like to Give Their Money to Lawyers. Divorces can be more expensive than you’d imagine. In this region, a middle-class couple’s divorce often involves $5,000 to $15,000 in fees, even when the case settles. If the couple can’t reach an agreement, and they press on to trial, those fees can exceed $50,000—sometimes for each spouse. Even their divorce lawyers often shake their heads, incredulously, at the parties’ stubborn folly.

    Well, here’s a secret. Cases whose outcomes are predictable do not go to trial! After all, who would spend tens of thousands of dollars to find out how a judge will divide their estate when they already know the answer?

    In other words, prenuptial agreements can go a long way to making divorce more peaceful, more predictable, and more affordable.

  1. Rich People. OK, OK. Yes. If you are wealthier than your partner, you should definitely have a prenuptial agreement. You like your money and other assets, don’t you? You want to keep them, right? Enough said.

What Can’t a Prenuptial Agreement Do?

Prenuptial agreements anticipate, essentially, two concerns: (1) How to contend with financial issues as part of a divorce; and (2) How to distribute assets in the event of a spouse’s death.

There are, however, issues that are beyond the influence of a prenuptial agreement, things it cannot do.

For example, spouses-to-be cannot pre-decide who will take custody of children in the event of divorce. Likewise, they can’t decide the shape, scope, and conditions of the other’s visitation. The Court retains authority to make final decisions about such matters, and a marrying couple cannot, by agreement, remove it.

Likewise, a couple can’t use their prenuptial agreement to establish child support amounts in advance or to waive that obligation entirely. Our law requires child support to be set according to specific guidelines and to change to specific amounts when the parties’ income changes. Parties cannot agree to terms different than the state’s.


What are the basic requirements of a valid, enforceable prenuptial agreement?

Here are the basic requirements:

  1. The agreement must be in writing, appropriately signed by both parties.
  1. The parties must enter the agreement voluntarily. For example, the agreement should be signed well before the wedding to avoid the appearance of a coerced last-minute signing (leveraged by the possible embarrassment of a cancelled ceremony).
  1. The agreement cannot be “unconscionable” (lawyer lingo for really, really unfair).
  1. The parties must make full disclosure of their assets, debts, and income.
  1. The parties should be represented and advised by separate lawyers.
  1. The parties should then follow the terms of their agreement during their marriage. For example, if the agreement says they’ll deposit their income in separate accounts, describes bill-paying methods, and investment or saving approaches, the parties should follow their agreement.

Can’t we just download a form?

There are a lot of things you can obtain online. You just can’t rely upon online resources for everything, can you?  There is no substitute for a one-to-one, face-to-face, relationship with a professional, though.

Again, this is important stuff—too important to leave to a one-size-fits-all online form, or to any old lawyer. You’re more likely to receive good advice and help from someone (1) with expertise, (2) who understands your specific circumstances. That means working with a qualified family law attorney, familiar with divorce and estate-planning considerations.


How should I dress for court?

Dress as nicely as you are comfortable with. If you’re a “suit guy” wear a suit. If you’re not comfortable in a suit, then don’t. “Business casual” is acceptable on the low end of the spectrum. If you can do better than that, do. Jeans, t-shirts, tank tops, shorts, anything strapless, all are inappropriate. Courtrooms are conservative, formal, places, where you want to make a good impression and show respect.


How shouldn’t I dress for court?

Clothing:

  • Sleeveless or muscle shirt
  • Exercise outfit
  • Nothing sexy or too dressy; tight tops; short skirts; sequins; slinky top; revealing tops, nothing you'd wear out on a Saturday night!
  • Sundress or strapless dress
  • Crop tops. Cover your belly button
  • Any top with spaghetti straps
  • T-shirts (especially ones with beer, drug or sexual references)
  • Anything you’d wear to the zoo or to do yardwork
  • Athletic attire, especially baseball caps
  • Jeans, unless they are the only long pants you own
  • Clothing that is too small or too large
  • Clothing that reveals your underwear
  • Hats
  • Shorts or cut-offs

(Most Courts will NOT allow you to enter the courtroom if you are wearing shorts.)

Footwear:

  • Flip-flop sandals
  • Athletic shoes
  • High heel spikes
  • Open-toed shoes
  • Anything you'd wear at the beach
  • Lots of jewelry, especially if it makes noise when you move.
  • Sunglasses, unless medically prescribed

Hair:

  • Wet & messy
  • Dirty
  • Unnatural dye job
  • Hairnet and/or curlers
  • Weird or unusual haircut

Hygiene:

  • Look dirty or unshaven
  • Cologne and perfume. Use very little. Too much and everyone will wonder what you are trying to cover up!
  • Smelling like cigarette smoke
  • Smelling like pot. That's a totally different problem!
  • Smelling of alcohol. Again that's a totally different problem!
  • Nails - extremely long nails on both men & women, neon or bright nail polish.

Tattoos & Piercings:

  • Hide the tattoos.
  • Remove the excessive jewelry BEFORE entering the courtroom.
  • Bare legs or shoulders showing

How should I prepare to go to court?

How to prepare will change from case to case, issue to issue, person to person. Follow your lawyer’s advice. Generally, though, being familiar with any affidavits or other written statements you’ve made is always a good idea.


When should I arrive for my hearing?

Again, your attorney’s advice may differ but, usually, 15 minutes early is on time, on time is late, and late is unacceptable.


Should I bring friends, family members, colleagues, and others to court for emotional support?

Unless they need to testify, we usually don’t recommend bringing extra people. More people just means more people for your lawyer to have to manage, more people to huff and puff at the opposing party, more people to get in the way. There’s no need to make these events circuses and public displays. Privacy is okay.


In my custody case, should I bring my kids to court?

Again, unless your lawyer tells you to bring your kids, no, don’t do it. Judges want to insulate children from their parents’ legal wranglings. If the kids don’t need to testify, your judge may actually be troubled by your bringing them.


How does the court receive evidence from kids?

Depending on the type of proceeding, courts usually hear from kids in three different ways: (1) They may appoint someone to visit with a child or children and write a report; (2) A child might submit an “affidavit”—a sworn, written statement—prepared by one of the lawyers; or (3) a child may testify, either in the judge’s chambers or in open court.


When kids testify, are parents in the courtroom with them?

Parents have the right to be in the room when their children testify. Most parents understand how difficult it is for children to testify in their presence, however; they consent to the kids testifying out of their presence.


In the courtroom, where do I sit?

Most courtrooms have two tables, one for each party. Most of those tables have two chairs, one for the party, the other for the attorney. The attorneys typically take the inside chairs, and sit closest to one another. The clients typically take the outside chairs, and sit furthest from one another.


Do you have any general tips on how to behave in the courtroom?

Yes. Be nice. Be civil. Be respectful. Be still. Put on a pleasant demeanor.


Are there things I shouldn’t do?

Yes. Don’t be reactive. Parties disagree with the other party’s testimony and positions, and with the other attorney’s comments and arguments. That’s a given. You don’t need to communicate your disagreement by outbursts, audible “under the breath” comments, gestures, or reactions. Judges’ days are filled with that kind of huffing and puffing, and they don’t like it.

And don’t monopolize your attorney’s attention. Passing him or her the occasional—very occasional—helpful note is one thing. Persistent whispering and note-passing to your attorney, however, is not helpful. Your attorney is intensely watching and listening to the judge, the witness, and the other attorney. That’s what you want him or her to do. Don’t distract them!


If I have to testify, will I have to take an oath?

Yes. Approaching the witness stand is perhaps the only part of the courtroom experience movies and TV shows get right. As you approach the witness stand, the clerk, or sometimes the judge, will ask you to stop, raise your hand, and affirm that “you promise to tell the truth, and only the truth, so help you God.”


When I’m talking to the judge, what do I call her?

In the courtroom, you address the judge as “Your Honor.” Judges are not Mr., Miss, Ms., you, Carol, Walter, or anything else. They are “Your Honor,” and that’s that.


I’m worried about getting emotional in the courtroom. What happens if I cry?

Courtrooms inspire emotion, so people cry in the courtroom every day.  Judges, clerks, stenographers, and lawyers are all used to it. It’s okay. If you can continue testifying through the emotion, just power through. If not, everyone will patiently and respectfully wait for you to regain your composure.


Do you have any helpful tips for testifying?

Yes. Here are ten tips:

  1. Tell the Truth: Don’t Argue: Don’t duck or dodge. Don’t juke or jive. Don’t spin. Tell it like it is, in your own words, as best you can.

  2. Listen Carefully, to the Whole Question: Witnesses can be so anxious to answer questions that they don’t wait until the attorney is finished. Jumping in too soon makes the court’s record jumbled, makes the Court Reporter’s job harder, and can result in answering the wrong question.

  3. Answer Only the Question That Was Asked: Pay attention to “the call of the question,” the scope of the question asked. Answer just that question and no more. When you volunteer additional information, you usually just prompt the questioning lawyer to ask more follow-ups.

  4. Take Your Time: You don’t pick up extra points for fast answers. Listen to the question. Be methodical. Answer it.

  5. Don’t Guess: Witnesses often think saying “I don’t know” makes them look dumb and, consequently, will try to answer questions they shouldn’t. C’mon. None of us remember everything. It can actually enhance a witness’s credibility to admit that they “don’t know.” If the truth is that you don’t know, then that’s the right answer to give.

  6. Make Sure You Understand the Question:  Sometimes lawyers garble questions, use unfamiliar words, or are just generally confusing.  During those moments, let them know you don’t understand what they’re asking.  They’ll re-phrase the question and try to do better.

  7. Don’t be Forced Into an Inaccurate Answer: It is one thing to be cooperative. It is quite another to be so cooperative that you’ll agree to propositions that aren’t true or with which you don’t agree. It’s okay to stand your ground. Just do so with civility and respect.

  8. No Fighting, Anger, or Impatience: If you display “attitude” or show anger or hostility of any kind to the opposing attorney, you are helping him or her, and are losing ground with the judge. Even if you feel the attorney is being inappropriate or mean to you, you are better off being patient and civil in response.

  9. Be Consistent: Be familiar with all other statements and representations you’ve made in your case. The opposing lawyer will have studied your prior statements and is looking to exploit inconsistencies and use them to undermine your credibility.

  10. Relax: Yeah. Easier said than done. But it’s still true. Witnesses who appear relaxed and conversational, who speak in their own words and don’t look practiced, who turn and talk to the judge when it’s important, are more believable.

What happens at a Pretrial Conference?

Not much. Pretrial Conferences are usually short and sweet. They are “case management” events, where trials and other deadlines are scheduled. The parties are usually required to attend, but don’t have to speak or do anything.


What is an ICMC and what happens at it?

Not much. The “Initial Case Management Conference” is an informal meeting that happens in Minnesota family cases. It’s a chance for a local judge to explain two processes—an FENE and SENE—and encourage you to use them. A Financial Early Neutral Evaluation (FENE) is a chance for you and your spouse to explain your financial circumstances and positions to a qualified neutral professional and then listen to their estimate of how a judge might distribute your debts and assets and deal with support issues. A Social Early Neutral Evaluation (SENE) is the same process, but involves your child-related issues (custody, visitation, decision-making, etc.).


Will I know the judge’s decision before we leave the courtroom?

Probably not. It’s only on TV and in movies that judges decide cases on the spot. In the real world, it’s more common for the judge to give lawyers a few weeks to submit written closing arguments and proposed orders before the Court issues its written decision and order. It often takes 1 to 3 months, sometimes more, to receive some decisions.


How are judges assigned to cases?

At random.


If I‘m not happy with the judge assigned to my case, can we disqualify him or her?

Yes. In both North Dakota and Minnesota, each party can disqualify one judge, whether for good reason or for no reason at all. After you’ve used your “one free bump,” you can only disqualify a judge for “good cause,” which most often involves a conflict of interest, such as when the judge knows, or has a relationship with, a party or witness.