Frequently Asked Questions
1. How do Minnesota courts split up property in a divorce?
In Minnesota, separate property is not usually included in what is divided up between divorcing spouses. However, Minnesota law does permit a judge to include it, when necessary. Necessary is defined as avoiding unfair hardship for either spouse. Spouses also have the option of changing a separate property into a marital property through the ownership title. If this happens, the court views the property as a gift from one spouse to the other.
2. I made a lot of money in the past, but, in this economy, I cannot pay in maintenance (alimony) anywhere near what I could have three years ago—will the court understand what happened to me?
Courts do allow spouses to petition for a change in their alimony if life circumstances change. This does not mean a paying spouse can just start paying less because his or her financial circumstances have changed. Instead, the request to decrease the amount paid must be treated in much the same way as the original process of establishing alimony was treated. You will need to work with an attorney who can provide guidance regarding how to update a maintenance or alimony award.
3. How is child support and maintenance in Minnesota calculated?
Minnesota courts use a standard formula to calculate child support, which takes into account:
- Parents’ gross monthly income
- Number of children in the home
- Other child support orders for either parent
- Spousal maintenance orders for either parent
- Benefits from parents’ disability or retirement
- The monthly cost of medical and dental coverage
- Cost of child care
- Amount of parenting time awarded to each parent
- Parent’s ability to pay
- Amount of Parenting Time per child, per parent
4. What is a marital settlement agreement in a divorce?
The marital settlement agreement is the document that outlines the arrangement between divorcing spouses for how things will be handled once their marriage is over. It is negotiated between the divorcing spouses and approved by the court. It typically addresses issues like division of property, spousal support, custody, and any other issues that are pertinent to a particular couple of families. The settlement agreement is intended to be permanent, but it can be altered if certain circumstances change.
5. What happens to retirement funds and 401(k) plans in a divorce?
In Minnesota, the property acquired by either spouse during the marriage, with just a few exceptions, is viewed by the court as marital property. This means it legally belongs to both spouses. Retirement funds, including 401(k) plans that include money earned during the marriage are considered marital property and can be divided. Money put into these accounts after the divorce is finalized is not considered marital property, but it is possible for your former spouse to gain access to your retirement savings according to Minnesota law.
6. What is a nuncupative will?
A nuncupative will, sometimes called a “deathbed will,” “an oral will,” or a “verbal will,” is instructions for the distribution of personal property given once a person is sick and can no longer execute a written will. They require a certain number of witnesses who must write down the instructions as soon as possible. This type of will does not supersede a written will. Nuncupative wills extend from the tradition of leaving property to people who were present when a person died.
7. What is a living or revocable trust?
A living or revocable living trust is an estate planning tool used to determine who gets a person’s property after he or she dies. The fact that a trust is “living” or “revocable” means it can be changed based on your circumstances or desires. The most common reason people choose to utilize this estate planning tool is that it can help them avoid probate, which tends to be time-consuming, expensive, and a burden for those settling their estate.
8. What is the role of an estate planning attorney in my estate plan?
Your estate planning attorney plays a vital role when you are planning your estate. He or she is able to provide guidance and help you understand the laws in your state affecting your planning and the settling of your estate once you are gone. He or she can recommend tools and actions to take to make the process of settling your estate easier for your family. There might also be things you can do during your life to protect your estate.
9. Is a Will really necessary if everything is owned jointly with a spouse or some other person?
A will is not necessary when a property is jointly owned, but it is still a very good idea to have one. There are a few reasons for this. You can never be sure that the person who jointly shares ownership will outlive you and will automatically take ownership of shared property. You might also have minor children and will need to arrange for their care if something happens to you and their other parent before the children reach the age of consent.
10. What happens if you do not have a Will?
In Minnesota, if you die without creating a will, the state’s intestacy succession laws dictate who inherits your property. This means that there is a priority order for inheritance set by the state. It varies from situation to situation based on who is related to the deceased and who is still alive. The law is complicated and can result in your estate being divided in a manner in which you would have never imagined, which is why it is so important to work with an estate planning attorney to create your own plan.
11. What does a civil rights lawyer do?
Civil rights lawyers are experts in laws that protect individual human rights, many of which stem from the US Constitution and Bill of Rights. They assist people when these laws have been violated. They work with plaintiffs who believe their rights have been infringed upon (they can also represent defendants). Some of the most common cases civil rights lawyers take on include issues related to employment law, religious freedoms, racial or gender discrimination, and freedom of speech and assembly.
12. How do you know if you need a civil rights lawyer?
If you believe your civil rights or human rights have been violated, it is important to speak to a civil rights lawyer. A civil rights lawyer will evaluate your situation and help you decide if you have a case worth pursuing. Some of the most common reasons people contact civil rights lawyers include:
- Any type of discrimination
- Unreasonable searches and seizures
- Cases of cruel and unusual punishment
- Loss of a job or denial of promotion on a discriminatory basis
- Abuse by a public official
13. What Should I Expect When Working with a Civil Rights Lawyer?
When you contact a civil rights lawyer, you should expect a thorough assessment of your situation to determine if you have a case. Civil rights laws tend to be complicated and it can be difficult to prove a violation. Cases also tend to be long and drawn-out, so it is important to objectively assess your situation before deciding whether to proceed. A civil rights lawyer has the knowledge of the law needed to help you determine what is best in your situation.
14. What is the compensation one seeks when suing because their civil rights have been violated?
Generally, when you pursue a civil right lawsuit you will be suing for damages instead of seeking to change rules or regulations. You might choose to seek injunctive relief instead. Injunctive relief (called an injunction) means that someone (usually a government organization such as the police or courts) is ordered by the court to stop violating your civil rights. Your attorney will advise you on how to proceed with your case and what relief you should seek in a given situation.
15. Is there a statute of limitations concerning civil rights?
Like most legal issues, there is a statute of limitations concerning civil rights cases in Minnesota. The time limit or statute of limitations in Minnesota for civil claims and other actions varies from two years to 10 years depending on the specific issue. When you meet with an attorney for a consultation about your case, he or she will advise you as to the statute of limitations in your specific situation. This is one of the reasons it is important to speak to an attorney as soon as possible after an event has occurred.