Nothing illustrates the importance of venue better than the 1.5-mile trip across the Blatnik Bridge from Superior, Wisconsin to Duluth, Minnesota. As you'll learn from reading this chapter and our chapter on Wisconsin, a one-night sexual encounter on one side of the bridge could yield enough child support to give the victorious custody plaintiff a personal spending power in the top 1 percent of Americans while the same encounter on the other side would yield only about $180,000 in profit, over an 18-year period, after paying USDA-estimated child-rearing expenses. A short-term marriage on one side of the bridge might end in a divorce trial where $100 million in pre-marital assets were at stake while on the other side of the bridge the trial would be about how to divide the wedding gifts. Given the demographic, topographic, geographic, and political similarities between Minnesota and Wisconsin these differences beautifully illustrate the random nature of American divorce, custody, and child support law.
Wright S. Walling generously shared his 42 years of experience with us. He has been listed as a "Super Lawyer" since 1999 and has also been recognized in "Best Lawyers in America." He is an expert on adoption and grandparent custody issues as well as garden-variety divorce, custody, and child support cases. His clients are predominantly women and "petitioners" (what most states call "plaintiffs") in Minnesota in general are predominantly women, both in roughly a 70/30 ratio. Walling goes to trial in "a diminishing" percentage of cases over his 42 years of practice. "There is a huge push in Minnesota toward alternative dispute resolution," he notes. "I go to trial in a divorce only about two or three times a year, though I have roughly another 15 per year in other matters, such as grandparent custody, contested adoption, visitation fights, and other post-decree disputes."
How does a grandparent case arise? "Typically because the mother has dropped the kid off and abandoned him or her so that the grandparent has been the de facto custodian. Minnesota has a specific third party statute that applies to relatives just like anyone else," Walling notes. So the litigants on the opposing sides of such a lawsuit are a mother and her adult daughter? "Yes," responded Walling. "They're very ugly and difficult cases."
See http://www.wbdlaw.com/ for a complete biography.
"A divorce lawsuit begins with the service of documents on the other side," says Walling. "And a lot of litigation occurs without court supervision. You would then come to court if there is a dispute regarding discovery, for example." How long does it take from start to finish? "In Minneapolis/St. Paul probably about a year," says Walling, "but in rural areas a case can go to trial within six months."
What if someone wants to get the house, kids, and cash on a temporary basis? "You can file a temporary motion and have it heard within 4-6 weeks," says Walling. Will courts kick one parent out of the house in a typical case? "Minnesota courts are inclined to give the house, kids, and cash to whoever looks like the primary custodian on a temporary basis," responded Walling. "Typically it is the husband who gets kicked out. However, in the long term the court may order the house to be sold." Do witnesses testify at these hearings? "No," says Walling. "There are affidavits and attorney argument, usually scheduled for 30 minutes."
Is Minnesota like other states in that the person who obtains the children, and a stream of child support revenue to go with them, at a 30-minute temporary motion hearing is very likely to hold onto them after a trial? "In terms of kids and custodial issues there is a cementing in of whatever happens at the temporary hearing," says Walling. "Most times in most counties it will be the same judge who was assigned initially who hears both the temporary motion and the trial. On the other hand, some counties have rotations and you won't know until day before the trial who the judge is going to be. But even if the judge is different you're always a step ahead if you've gotten what you want at the temporary hearing. Inertia is on your side."
What about petitioners who don't want to wait 4-6 weeks to get the house? Can they accelerate the process via the domestic abuse system? "Absolutely," says Walling. "That's the faster way to go. But while courts in Minnesota will err on the side of accepting the allegations of a divorce petitioner in a motion hearing they can become skeptical at the time of the trial and it will be tough to prove domestic abuse solely with the testimony of the petitioner." So the petitioner has about a year of the benefits available to a domestic abuse victim, such as exclusive use of the house, sole custody of children, and child support payments even if she can't prove any abuse at the trial? "Yes," Walling responded. "It puts a lot of pressure on fathers to settle."
How effective is the system in Minnesota at sorting out legitimate from strategic allegations of abuse? Does Walling agree with other attorneys who say that sociopaths are some of the most credible witnesses? "There's usually a crack somewhere," responded Walling. "A good litigator can crack holes in a story if it is not true. My biggest complaint about the domestic violence process and divorce trials is that the courts no longer have independent social workers working directly for the judge." Walling says that people who prepare more thoroughly and/or have deeper pockets are advantaged. How does it actually work? "The woman can prepare a domestic violence case for months without the man being aware," says Walling. "She can go to a therapist and tell a story there that will enable the therapist to then come in and testify that the mother is an abused woman [based purely on what the therapist has heard in her office and without the therapist ever meeting the father]. She can try to provoke her husband into yelling at him and make an audio recording, which is admissible in Minnesota if one party is aware that the recording is being made. The man responding to this case, on the other hand, has only a few days to prepare his response." I.e., if a wife successfully concealed her litigation plans, her husband would consume most of the time available for a response just searching for a lawyer to represent him. The bottom line? Walling says that "Someone who is sophisticated and has thought this through can make a [created-from-whole-cloth] domestic abuse case stick."
As you'll see from reading the scenarios below, Minnesota makes it relatively easy for one parent to win sole custody of children. However, the financial rewards from such a victory are relatively modest. Child support is $1,883 per month ($22,596 per year) when a parent with a $180,000 per year gross income is paying. That's profitable compared to the $7,665 per year that the state would pay a foster parent or the $9,000 per year that the USDA estimates a parent would spend on a child. However, it is underwhelming when set next to the $30,600 per year that the same child would yield in neighboring Wisconsin. When higher income defendants are sued the disparity is much larger. The child of a medical specialist who earns $750,000 per year in Wisconsin will yield $127,500 per year in tax-free child support. In Minnesota child support is generally capped as though the defendant earned only $180,000 per year and thus the child yields only $22,596 per year (less than 1/5th as much just because a 1.5-mile bridge was crossed).
Do the children of the divorced-or-never-married wealthy actually have a different lifestyle as a consequence of these capped child support guidelines? "The court can deviate upward, but seldom does," says Walling. "The Supreme Court [of Minnesota] recently reaffirmed the top-of-the-guidelines level despite a very wealthy father having been sued." So a child of a rich Minnesotan might have to learn what the interior of a public school or Chevy Malibu looks like? "There are often agreements between the parents to deviate upward," said Walling, consistent with what attorneys in other states with modest child support guidelines told us. How about day care and health insurance? Does the parent receiving $22,596 per year have to pay those? "Day care and health insurance can be ordered separately," says Walling. "Almost always health insurance will be paid by the person with the most money."
As is common in many states, child support ends at age 18 and, absent an agreement between the parties, the court cannot order a parent to pay for college costs. Alimony is likely to terminate or be reduced when the payor reaches retirement age: "Judges are not inclined to force men to keep working past age 65," says Walling. "We don't have much case law regarding collecting child support from an estate [after the death of a defendant parent]," says Walling. "But most judges will order a parent to maintain life insurance to cover any outstanding child support obligation."
Walling says that a "walk-away" prenuptial agreement, in which separate property remains separate and no alimony is paid, would be valid in Minnesota, which also allows post-nuptial agreements. On the other hand he says "These can be challenged after a long-term marriage and a court might refuse to enforce an agreement."
The average hourly wage in Minnesota is $22.42 per hour, compared to $20.15 per hour in neighboring Wisconsin. Census 2014 data show than median income for a 22-36-year-old college-educated woman working full time is $45,000 per year ($33,504 after taxes). The corresponding male earns $58,000 per year ($41,343 after taxes). Attending University of Minnesota, Twin Cities for four years will cost $103,576. Minnesota collects 10.8 percent of state residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation). Minnesota gets an economic boost from its demographics: "The 4.4 million or so Americans with Swedish origins are considerably richer than average Americans, as are other immigrant groups from Scandinavia." ("The surprising ingredients of Swedish success -- free markets and social cohesion," by Nima Sanandaji, 2012, Institute of Economic Affairs). At the same time, Minnesota state and local governments spend a higher percentage of their budgets on what the U.S. Census Bureau calls "welfare" than all states except Maine and Rhode Island (source: 2007 Census of Government Finances).
The average annual cost of child care is $13,579 for an infant and $10,470 for a four-year-old. The total cost of child care from age 0 through 12 is about $87,084 in commercial settings or $52,354 in a family care setting.
The male college graduate will have an after-tax spending power of $475,226 after 14 years of working (14 years of income minus taxes and the cost of college). Factoring in the USDA-estimated costs of caring for a child, he would have a higher personal spending power collecting child support when that support is $2,905 per month or more. This is an amount that is not obtainable in Minnesota for a single child, absent judicial discretion being applied in his favor. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,850 per month, which is possible when each mother earns $175,000 per year in gross income.
The female college graduate will have an after-tax spending power of $365,480 over the same time period. She would be better off collecting child support when that exceeds $2,442 per month. This exceeds Minnesota's cap on child support for a single child. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,596 per month from each one. This should be possible within the guidelines if each defendant earns at least $151,200 per year.
Among Minnesotans surveyed by the Census Bureau in 2014, 92 percent of those collecting child support were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"The presumption in Minnesota is for joint decision-making," says Walling, referring to what other states would call "joint legal custody." What if the father asks for 50/50 parenting, child support, and alimony while the mother wants to keep the child and her money? "There are a couple of bottom lines here," says Walling. "The husband is not going to get 50/50. The likelihood of him getting alimony is remote in the extreme and that ties into the parenting plan. The judge's attitude will be "If you're healthy go work,' which means that court must assume that both people will be working during the day. Mom's not likely to be ordered to pay the nanny when husband has custody." What about the argument, that would be a winner in many other states, that he just wants to preserve the status quo of the marital lifestyle and him being a stay-at-home parent? "In a short-term marriage he can't raise the standard of living issue," says Walling, "and generally a court will look at him skeptically."
What about the child's schedule with the father? "He has a minimum of Friday afternoon to Monday morning every other weekend," says Walling, "and could get one overnight per week." (I.e., 5/14 nights or 36 percent of the time.) At what point does the mother have to start paying him child support? "The category for shared parenting is from 45.1 to 50 percent of the time." Would Walling expect the mother to fight hard to keep the child from spending more than 45 percent of the time with the father? "Yes, though remember that the dynamics of the relationship change after the divorce. Sometimes they get better; sometimes they get worse. People get unrealistic perceptions of their spouses [as parents] based on what happened during the marriage and have unreasonable fears [about the other person's ability to parent]."
Can the mother forestall a shared parenting arrangement, as would be possible in other states, by starting fights with the father? "The joint custody statute specifically talks about ability to work together," says Walling, "and thus favor a parent [who is on track to win sole custody] who generates conflict."
Will this be decided by a judge hearing witnesses or effectively decided by a third party of some sort? "We have a strong Guardian ad litem program in Minnesota," says Walling. Are the GALs lawyers? Mental health professionals? "A GAL can be anyone," responded Walling, "and there are also court-appointed special advocates (CASAs). They just need to complete a training program. They are not supposed to make custody recommendations but are allowed to make a visitation recommendation, which essentially amounts to the same thing if you are changing parenting time from 10 percent to 48 percent. The issue is being litigated currently."
Is there an age at which the mother is at risk of paying child support due to the child expressing a desire for a 50/50 schedule? "The child's opinion can be considered at any age or no age," says Walling. "It varies with each judge. Often by age 12 or 13 a child is heard but not necessarily listened to."
What's the standard for getting a judge to modify a previously ordered parenting schedule? "It requires a 'significant change of circumstances' and then, if that hurdle is cleared, is decided in the best interest of the child," says Walling. Is Minnesota like Massachusetts and some other states where a child growing up from 1 to 15 is not a "change of circumstances" because it was foreseeable? "No," responded Walling. "Courts recognize that a child getting older is a change."
How about a property division in the father's favor, since his income potential is so much lower than hers? "The $100,000 in photo equipment will be deemed marital and divided 50/50," says Walling. "He can argue that it was a gift and part of his business but is likely to lose on that."
By statute, the defendant in this case, due to having less wealth and income than the plaintiff, could get her ordered to pay some of his legal fees.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if the two parents go to court each asking to be the primary parent? Can the judge ignore both and parties and award 50/50 shared parenting? "Yes," says Walling. "We have even had judges who required parents to live in the same school district so as to make 50/50 time practical." Is that what Walling expects in this case? "It just comes down to the personality of the judge," he responded. "One judge might order it against the will of both parents and I've also seen judges reject a 50/50 arrangement where the parents and lawyers negotiated it and stipulated it."
What's at stake financially here? Minnesota is an income shares state, so the combined monthly income of the parents is plugged into the table and a $2,955/month number for child support comes out. Due to the fact that the parents have equal incomes, in a sole custody situation the loser parent would pay the winner parent $17,730 per year. Assuming that both need to have five-bedroom dwellings, the loser would be funding that on $45,745 per year in after-tax income (filing single) minus $17,730, a poverty-line number of $28,015 per year. The winner would be funding that five-bedroom lifestyle on $50,809 in after-tax income plus $17,730 or $68,539 in total spending power.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"The court will initially give him only every other weekend and also one night during the week," says Walling, "particularly if she is still home." How long can she stay at home given that child support for two children is capped at $2,727 per month ($32,724 per year). "Minnesota doesn't favor long-term alimony," says Walling, "but is quite favorable to temporary maintenance to get her back into the workforce. Her best option is to come in with a plan to get back into the workforce over time. The court will take into account her actual budget. She can get 4-5 years of temporary maintenance, possibly decreasing towards the end."
If the court's taking into account her household expenses, does that favor pre-lawsuit planning? If she knows that she is going to file a lawsuit, she can get a fancier car and a bigger house in the year or two leading up to the divorce? "Pre-lawsuit planning is absolutely the key to any lawsuit, though there are limits to how far it can get you on financial issues," Walling responded. "It is very helpful in custody cases."
How much alimony can she get? "A 10-year marriage is on the cusp of her being able to make a standard-of-living argument," says Walling, "but in any case he won't have to pay more than 50 percent of his income as a combination of maintenance and child support."
What if he says that now that he doesn't have a stay-at-home wife he would like to cut back on his work schedule so as to have more time to take care of the children? "The court will not be hostile to him cutting back to $225,000 per year," says Walling, "but income will be imputed to him if he were to cut back to $40,000 per year."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"If you look at our law you would say that everybody is equal," says Walling. "But if you look at reality you will find that [a plaintiff] mom is in control when a child is young. Mom is in a better position to be given time to be at home to be with the child as the primary parent. The view that moms are better parents is easier to support [in front of a judge] when a child is young."
Walling agreed with attorneys in other states that a mother seeking to win the primary parent role is well-advised to sue when the child is young due to the fact that the primary parent designation is very sticky in Minnesota.
The mother will receive child support at the top of the guidelines ($22,596 per year). "There is a possibility of short-term maintenance," says Walling, "but in the long run she will go to work and he will pay for day care."
Can she get the share of the $2 million in savings that she seeks? "His $2 million is a non-marital asset," says Walling. "There can be an argument about appreciation. However, if the money had been invested in stocks and bonds, even if he had been an active investor, it is unlikely that she could get half of the appreciation."
(Note that the income on the $2 million does not benefit this plaintiff beyond the short-term maintenance period due to the fact that the defendant's income is already over the amount used to figure the child support cap. Also note that in Wisconsin the entire $2 million would be potentially up for grabs.)
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
How often does Walling handle a case like this? "I do a lot of paternity work," he says, "and in this case she will get custody and child support at the cap [$22,596 per year]."
Is a father prejudiced in seeking parenting time, compared to a situation where the parties were married, if the mother doesn't tell him about the baby for a few months or years? "He can be," says Walling, "but probably a court will give him some kind of build-up in time. The court will be skeptical that his desire to spend time with the child is really about wanting to pay less in child support."
How long can the mom wait and still get her full 18 years of child support? "She can go back only two years for child support and 'lying in' or medical expenses for three years. She can get attorney's fees paid under the same statute as for a divorce."
What if she doesn't want to hire an attorney? "If she is on public assistance," says Walling, "the state will do everything for her. Otherwise she would got to a self-help desk in a courthouse." Walling notes that, as in a criminal case, the father would be entitled to a taxpayer-funded lawyer to defend the paternity and child support lawsuit.
Walling says that if the mother were to marry an extremely wealthy person there is "only a slight theoretical possibility" that her child support revenue would be reduced.
"We call it 'relocation'," says Walling. "And there is a lot of litigation on this issue. The presumption is now that you'd better have a really good reason cast in terms of the child's best interest to be allowed to move." What if the mom has a legitimate reason, such as a remarriage and a great job and she was previously victorious to the point that the child was with the father only every other weekend? Mom still has an uphill battle," says Walling. "It would help if she proposes that the child see the father for every holiday and during the summer."
Minnesota opens up a rich field of litigation whenever anyone self-employed is sued. The definition of "gross income" for child support calculation includes the following section:
For purposes of section 518A.29, income from self-employment or operation of a business, including joint ownership of a partnership or closely held corporation, is defined as gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation. Specifically excluded from ordinary and necessary expenses are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate or excessive for determining gross income for purposes of calculating child support. The person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary.
In other words, the litigants pay attorneys, and the taxpayers pay court personnel, to engage in an argument regarding accounting methods and the tax code despite the fact that there might not be anyone in the room who is qualified to understand either. Unusually among states, Minnesota explicitly shifts the burden of proof onto the self-employed person of showing that each and every expense on his or her tax form is "ordinary and necessary."
Minnesota assigns different cash values to different children from the same parent. In figuring "gross income", amounts for preexisting child support orders are subtracted. Thus the first person to sue gets the most cash and each subsequent plaintiff gets less. A child of an intact marriage has only about half the entitlement to cash as an extramarital child under section 518A.33: "The deduction [from gross income when suing a defendant who has children at home] for nonjoint children is 50 percent of the guideline amount determined under paragraph (b)."
As in most other states, Minnesota provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent can yield $38,232 per year compared to three children with three different co-parents where the revenue is a tax-free $67,788 per year. This works out to a $532,008 difference over 18 years.
Walling says that there is "rising political pressure" for a presumption of joint 50/50 custody and that this pressure is "mostly from fathers' rights groups." What does he think of the proposal? "I don't support it. It gets away from considering a child's best interest." But what does it cost for two lawyers to argue over a child's best interest? Walling charges $450 per hour and says that fees in a case involving custody can total $140,000 on the two sides. Is the child really better off with a lopsided schedule after a year of litigation and $140,000 of his or her college fund spend? "Lawyers in general and family lawyers in particular do not do a very good job of explaining the ramifications of choices available to litigants," responded Walling.
What is Walling's personal experience with what happens to a child's parents after the court officially rules that one parent is primary and the other secondary? He responded that he has seen a lot of fathers "check out" after they were assigned to the secondary parent role. "They would have been more likely to stay involved with the child if they'd been assigned a 50/50 role," concluded Walling.
If Walling could redesign the Minnesota system he would "give significant increases in resources to the courts because having advocates on two sides isn't appropriate for kids; the court should have its own workers looking for the middle ground." That funding would also provide quickly access to courts and enable the courts to get rid of electronic filing, which Walling believes has insulated the courts from citizens and lawyers. (Perhaps he has a point; if you wouldn't fire a burger-flipping employee via email should you be able to get rid of your spouse and co-parent via email?)
Walling supports the idea of "more direction for the court" on alimony, but not a chart as is produced for child support guidelines. Walling supports the cap on child support.
Compared to neighboring Wisconsin, Minnesota offers dramatically smaller financial rewards from both short-term marriages and winning custody of children, though the state is not stingy toward plaintiffs by national standards. Children are still profitable enough in Minnesota to generate plenty of litigation.
Minnesota is similar to other states in richly rewarding people who use the domestic abuse prevention system, even when allegations of abuse cannot ultimately be proved. Minnesota rewards parents who generate conflict by blocking shared parenting awards. Minnesota rewards spouses who secretly prepare in advance to sue the other (unaware) spouse.
Minnesota will effectively strip an infant of 18 years of significant involvement by one parent in a 30-minute "temporary" hearing that, as in other states, has results that tend to be permanent. Yet the same court system will lavish enormous amounts of time and effort on trying a claim that a self-employed defendant's income is higher than what was figured by accountants and the IRS.
The fact that not every financial want can be satisfied through court-ordered child support brings a lot of parents to the negotiating table compared to states where every dream can be satisfied by a judge.