Family Law Basics

Things you should know

  1. There are numerous types of family law matters.  The most common family law matters include:
    • Paternity proceedings (determining who is the father of a child);
    • Custody and Parenting time;
    • Child Support (establishment and modification);
    • Dissolutions (divorce);
    • Legal Separations (same issues as a divorce but the marriage is not dissolved);
    • Name Changes;
    • Third party custody;
    • Contempt (not following a Court’s Order); and
    • Orders for Protection (aka OFP);
  2. Most family law matters begin by serving a legal document on the other party (generally a summons and motion).  The party that was served then has to serve an answer or response to the motion or petition within twenty days.
  3. There is typically an initial court hearing for the judge to meet the party’s and determine what the issues are.  The judge (or magistrate) typically orders the party’s to participate in mediation to see if they can come to a resolution that may be less expansive than having contested hearings.  Generally, if the party’s still can’t come to a resolution, the matter is returned to court for further proceedings, which could include a contested hearing (similar to a trial where witnesses can be called).
  4. In some matters, temporary relief can be sought by motion. Temporary matters can include temporary child support, temporary custody (legal and/or physical), temporary property distribution (like who can stay in the home and who has to pay for it, etc.), temporary child support, and temporary attorney fees.
  5. In Minnesota, each party is generally responsible for paying their own attorney fees. However, attorney fees can be awarded based on one party’s need (and the other party’s ability to pay) or for bad conduct (during the proceedings).
  6. In Minnesota, there is a presumption for joint legal custody (the ability and right to make decisions concerning the medical, education, and health needs for the child(ren)).  If a couple has a child and they are not married, the mother is presumed to be the custodial parent. That will not be changed unless there is a court order issued.
  7. In Minnesota, an unmarried father does not automatically have joint custody of their child (legal or physically) or parenting time.  The ONLY way to obtain custody rights or parenting time is by a court order. A verbal agreement between parents is generally not enforceable, unless it’s adopted by a court in a court order. This means that the police are likely to not assist a parent with obtaining their child for parenting time without a court order.
  8. In Minnesota, child support is calculated based on both parents income ( "PICS", parental income for child support) and the amount of court ordered parenting time.  A parent that is unemployed may have income imputed to them in some circumstances).  There is a presumption in Minnesota  that the non-custodial parent is entitled to 35% parenting time (an average of approximately 10 days a month), unless the court determines that this amount of time is not in the child’s best interest.
  9. Minnesota uses the best interest of the child factors to decide custody matters.  There are 13 factors, which include:
    • The wishes of the parents;
    • The reasonable preference of the children (if old enough);
    • The children’s primary caretaker;
    • The intimacy of the relationship between each parent and the children;
    • The interaction and interrelationship with the children, parents, siblings, and any other person who may significantly affect the children’s best interests;
    • The children’s adjustment to home, school, and community;
    • The length of time in a stable, satisfactory environment;
    • The permanence, as a family unit, of the existing or proposed custodial home;
    • The mental and physical health of all individuals involved;
    • The capacity and disposition of the parties to give love, affection, and guidance, and to continue educating raising the children in their culture and religion and creed;
    • The cultural background of the children;
    • The effect of the actions of an abuser on the children if domestic abuse has occurred; and
    • The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the children.
  10. A legal separation can help decide issues such as child custody (legal or physical), parenting time schedules, child support, spousal maintenance, property distributions, and/or attorney fees.  A legal separation is essentially the same as a divorce, EXCEPT the marriage is not legally dissolved and the parties are still married.
  11. An OFP can be issued if the court finds that there has been domestic abuse.  An OFP can be issued on behalf of children in some circumstances.  If the person applying for an OFP convinces a judge that there is an immediate need for protection, a temporary "ex parte" Order can be granted without even hearing from the other party.  The other party must then demand a hearing and sometimes pay a filing fee to challenge the OFP.
    • An OFP can have a detrimental effect on a custody proceeding if there are findings of domestic abuse made.
    • A party can agree to an OFP issue without findings being made;
    • If there are mutual petitions for a OFP’s, the parties can agree to mutual OFPs without a contested hearing.
    • The party seeking the OFP has the burden of proof and will be required to present evidence at a hearing.
  12. Contested family law matters can be very emotionally draining and time consuming, not to mention expensive.  Thus, it is very important to have experienced legal representation as early as possible because some actions may not easily be undone. 

How WLO can help

  1. At WLO, we begin with our free initial consultation, where we meet and gathered necessary information about your specific needs and goals and advise you of how to meet those goals.
  2. At WLO, we advise you based on your specific situation,taking into account your children and resources.
  3. At WLO, we draft legal documents to avoid making your situation worse. Because you have to deal with the other party well after the attorneys are gone. You deserve peace in your life, not contention.
  4. At WLO, we will refer you to the necessary professionals (like custody evaluators, mediators, parenting accessors, financial consultants, employment consultants, and investigators) to assist in meeting your goals.
  5. At WLO, we thoroughly explain the law and prepare you for all stages of litigation, including depositions and court appearances.
  6. At WLO, we assist you gathering the necessary evidence to support your motions and goals.
  7. At WLO, we can assist in determining if an appeal is necessary and can help with any appeal of a court order.

If you need experienced and knowledgable representation in a family law matter… CALL WILSON LAW OFFICE today for your free initial consultation