We are pleased to offer you several informational resources for your knowledge and convenience.  We have provided some general information regarding Family Law and have addressed some frequently asked questions.  We hope you find these resources helpful.  For additional information, please contact McCarten Law Firm.

If you choose to use content from our website to represent yourself in any legal matter without a lawyer, you accept full responsibility for your work.  We advise that everyone use a local, experienced attorney for all legal matters- No Exceptions.  The stakes are too high to take the chance of getting it wrong.


DIVORCE FAQ:

WHAT CAN I EXPECT WHEN I HIRE A LAWYER?
At McCarten Law Firm, our attorneys will meet with you at your initial consultation.  Once you have officially hired one of our attorneys to represent you, the attorney is then able to file and serve legal documents on your behalf, and to receive documents and correspondence on your behalf.

Specific steps taken by the attorneys at McCarten Law Firm vary based upon the particular facts and circumstances of your case, and will be discussed with you at your initial consultation.

HOW MUCH WILL IT COST TO HIRE A LAWYER?  HOW DOES BILLING WORK?
The family law attorneys at McCarten Law Firm typically work on an hourly-rate basis.  Divorce attorneys are not permitted to work on a contingency basis.  Clients can expect to pay higher fees for cases that require more time, and lower fees for cases that resolve quickly.

At McCarten Law Firm, we ask clients to pay an initial retainer fee which is held in our Trust Account.  Our attorneys then bill time spent on the case against the initial retainer.  If the case is resolved and there is money remaining in the Trust Account, the client is refunded the remainder.  On the other hand, if the initial retainer is depleted and the case is not yet resolved, the client will be asked to replenish the retainer.

WHAT ARE THE FIRST STEPS IN A DIVORCE?
If McCarten Law Firm initiates a divorce on your behalf, we will draft the divorce petition and arrange to serve it on your spouse.  On the other hand, if your spouse initiates the divorce action, a McCarten Law Firm attorney will respond to your spouse’s petition, analyze the allegations made, and assist you in navigating the rest of the divorce process.

DOES IT MATTER WHO FILES FOR DIVORCE?
Each spouse is entitled to fair and equitable treatment by the court, regardless of who initiates the divorce proceeding.  However, there may be some value in filing your divorce petition before your spouse can as it pertains to “venue,” or the county in which the divorce will be heard.

HOW LONG DOES IT TAKE TO COMPLETE A DIVORCE?
It depends.  If all of the issues of your divorce are uncontested or agreed to, a McCarten Law Firm family law attorney can help you complete the divorce in as little as a few weeks.  However, if there are disputes that need to be mediated or negotiated, the process can take a few months.  Finally, if issues in your divorce cannot be negotiated and agreed upon, a court trial may be necessary.  On average, a divorce that requires a trial will take between 12 and 18 months.  Your divorce may take a longer or shorter amount of time, depending on the specific circumstances of your case.

WILL I PAY OR RECEIVE SPOUSAL MAINTENANCE?
In Minnesota, there are no guidelines for alimony/spousal maintenance.  Many divorces involve no spousal maintenance, meaning neither party pays or receives maintenance.

If there is a substantial disparity between the income of the spouses and they’ve been married for a long time, there is a greater likelihood of one spouse paying maintenance to the other.  The award of spousal maintenance is very fact dependent and varies depending on the specific circumstances of each case.

WHAT ARE THE GUIDELINES FOR PARENTING TIME?
The Minnesota Supreme Court advisory task force has provided a general set of recommendations regarding parenting time.  However, Minnesota law does not provide specific guidelines regarding parenting time for the non-custodial parent.  Minnesota law does provide a presumption of at least 25% parenting time.

In most cases, parents are able to agree on a parenting schedule that is suitable for the child(ren).  If the issue of parenting time is presented to the court, the court will typically acquire guidance from a neutral profession, such as a guardian ad litem or custody evaluator, to determine what is in the children’s best interest.

HOW IS CHILD SUPPORT DETERMINED?
In January 2007, the Minnesota Legislature passed a law requiring all child support calculations to take into account the incomes of both parents.  Generally, the parent with primary physical custody of the child(ren) will receive child support from the other parent, in an amount determined by the State guidelines.  Still, the court has discretion to follow the guidelines or to deviate upwards or downwards from those guidelines.

WHAT IF ONE SPOUSE IS IN ANOTHER STATE?
The attorneys at McCarten Law Firm have significant experience with interstate family law cases.  Interstate cases involve several bodies of law regarding jurisdiction.  Our attorneys can assist in navigating jurisdictional issues and any other complexities that arise from an interstate matter.

WHAT IF ONE SPOUSE IS I ANOTHER COUNTRY?
Similar to interstate family law cases, international family law cases involve complex jurisdictional issues and international law, including the terms of the Hague Convention.  It is important that you be properly advised about the law in these matters.  Not only do international family law matters involve court hearings, but they often involve contact with various embassies, peace officers, the Department of State, and the National Center for Missing and Exploited Children.

The attorneys at McCarten Law Firm have successfully represented clients in international divorces and have helped clients smoothly navigate complex legal issues.

WHAT IS MEDIATION?
Mediation is a process of resolving issues in a divorce or family law case by agreement, utilizing a neutral third party.  After it is determined that disputes issues exist, but before the disputed issues are heard by the court, the parties can present their issues to a professional, neutral third party, called a mediator.

Mediators have no authority to render a decision in your case.  However, mediators are very effective in assisting parties in finding common ground and creative solutions to resolve disputed issues.

The attorneys at McCarten Law Firm frequently represent clients engaged in the mediation process, and advise them as they work through the mediation process.


CUSTODY FAQ:

WHAT IS LEGAL CUSTODY?  WHAT IS PHYSICAL CUSTODY?
Legal custody provides one or both parents with the authority to make decisions about the child’s health, religion, education, etc.
Physical custody is a term used to address where a child lives, primarily.

WHAT IS JOINT CUSTODY?  WHAT IS SOLE CUSTODY?
Joint custody means that both parents share either legal custody, physical custody, or both.  Sole custody means that one parents possesses, solely, either legal custody, physical custody, or both.

If parents share joint legal custody, both parents are entitled to weigh in on medical, religious, and educational issues regarding the child.  If one parent has sole legal custody, that parent has sole discretion in making decisions regarding the child’s medical treatment, religious upbringing, and education.

If parents share joint physical custody, the child does not reside primarily in one parent’s house.  Instead, the child will spend relatively equal time residing with each parent.  If on parent has sole physical custody, the child resides primarily with that parent.  When one parent has sole physical custody, the other parent may have parenting time.  The amount of parenting time depends on the circumstances of the case.

WHEN WILL CUSTODY BE DECIDED?
If the parents are married, custody will be decided as a part of the divorce.  Temporary custody and parenting time may be ordered by a court, pending the final divorce order.

If the parents are not married, Minnesota law states that the mother is presumed the sole custodian until the father petitions the court to establish custody and parenting time.

DO COURTS FAVOR THE MOTHER OR THE FATHER?
Under Minnesota law, the courts are not allowed to be biased for or against one parent based on their gender.

HOW IS CHILD CUSTODY DECIDED?
If the parents cannot agree on a custody arrangement, the court will make a determination depending on the specific circumstances of each case.  The court must consider several factors, which are outlined by Minnesota law, and determine what is in the best interest of the child(ren).  The court will also give significant deference to the opinion of an expert, such as a custody evaluator or guardian ad litem.

WHAT IS PARENTING TIME/VISITATION?
If a parent does not have physical custody of a child, the time he/she spends with the child is considered “parenting time.”  The amount of parenting time that will be agreed upon or ordered will vary depending on the facts and circumstances of your case.

CAN A JUDGE ORDER SUPERVISED PARENTING OR NO PARENTING TIME?
Yes.  In instances where a parent has a record of domestic abuse or is deemed to be a physical or emotional danger to the child, supervised parenting time or no parenting time can be ordered by the court.

WHAT IS AN EX PARTE ORDER?
An ex parte order is an order granting an ex parte motion.  Ex parte orders are emergency orders in nature.  A typical motion is required to be served on the other party at least 14 days before the hearing.  If an ex parte motion is made by one party, the notice requirements are waived in order to get the parties into court sooner.

The court may grant immediate relief to the party making the ex parte motion, pending a hearing and final decision.

WHAT CAN I EXPECT FROM TEMPORARY ORDERS?
Temporary orders stem from temporary motions made by one or both parties.  These motions can deal with any issues relevant to the underlying family law case.  A temporary order can be in place for a few months or even years, if never modified or overruled by later order.

WHAT IF WE CAN’T AGREE ON A CUSTODY ARRANGEMENT?
If parents cannot mutually agree on the issue of child custody, the court will be asked to make the determination.  The court will determine which parents will have custody and create a parenting time schedule that it deems is in the child(ren)’s best interest.
In some cases, the court will order a custody evaluation be completed by a neutral evaluator.  Custody/parenting time evaluations usually take between three to six months to complete, and the parents will be required to pay for the evaluator.  The court will typically follow whatever recommendations the evaluator makes regarding custody/parenting time.

WHO WILL GET CUSTODY OF OUR CHILD(REN)?
It depends.  The court has to consider the statutory factors in each case and determine what is in the child(ren)’s best interest.

CAN I MODIFY CUSTODY?
Parenting time can be modified any time the modification would be in the best interest of the child(ren).
A substantial modification in parenting time can be considered a change of custody, and a change of custody can only occur if it can be shown that the child(ren)’s present environment is endangering the child(ren).

WHEN CAN MY CHILD DECIDE WHICH PARENT TO LIVE WITH?
Minnesota law sets no age at which a child can decide which parent to reside with.  As a child gets older and more mature, the court will increasingly consider the child’s wishes as one factor in the determination.

WILL MY CHILD HAVE TO APPEAR IN COURT?
Probably not.  The court typically frowns upon minor children testifying in open court.  In some cases, the court may allow the child(ren) to give their thoughts or opinions directly to the judge, without the parents present.

CAN MEDIATION BE USED IN CUSTODY CASES?
Yes.  McCarten Law Firm clients frequently utilize mediation to resolve custody and parenting time issues.  Mediation is an extremely effective method of resolving any disputed family law issues.

DO GRANDPARENTS HAVE RIGHTS TO CUSTODY OR VISITATION?
Typically, no.  Third parties do not have parenting time rights to minor children unless the third party brings an independent action before the court to gain those rights.

WHAT IS THE PARENTAL KIDNAPPING PREVENTION ACT?
Minnesota has a Uniform Child Abduction Prevention Act (UCAPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It was put into place to try and protect the child and parent from the situation where one parent abducts a child unlawfully and refuses to return the child.

IF BOTH PARENTS SHARE CUSTODY, WHO WILL PAY CHILD SUPPORT?
Child support is based on the gross monthly income of both parents, as well as daycare and medical insurance expenses.  Parenting time of each parent is also a factor.

There are three tiers for parenting time percentages, under 10%, 10% to 45% and 45.1% to 50%. There is a 12% reduction in child support for a parent receiving between 10% and 45% of the parenting time. There is also a more significant reduction for a parent with 45.1% to 50%.

CAN A PARENT REFUSE TO ALLOW PARENTING TIME IF CHILD SUPPORT IS NOT PAID?
No.  Failure to pay child support is not a valid excuse to deny parenting time.

IF I HAVE CUSTODY, WILL I RECEIVE CHILD SUPPORT?
Typically.  Child support is based on the gross incomes of both parents.  The calculation also considers the amount of parenting time, daycare expenses and medical insurance expenses.

CAN THE OTHER PARENT MOVE THE CHILD(REN) OUT OF STATE?
Not without permission or a court order. A non-custodial parent may give permission allowing the custodial parent to move the child(ren) out of state.  However, if the non-custodial parent does not agree with the move, a custodial parent must bring a motion before the court requesting permission to move out of state. The parent requesting the move must show that the move is in the best interests of the child.

CAN A PARENT CHANGE THE CHILD’S LAST NAME WITHOUT THE OTHER PARENT’s PERMISSION?
No minor child’s name may be changed without both parents having notice of the pending application of change of name. The applicant must show proof that the non-applicant parent(s) has received notification of the Application for Name Change of a Minor.