Monday, August 30, 2010

Court of Appeals Approves Obligor Making Mortgage Payment as Part of Support Obligation

As reported in Minnesota Lawyer on August 23, 2010, in Tiede, the trial court may allow a child support obligor to make the homestead mortgage payment as a part of the support obligation when the obligee has failed to make the mortgage payments despite having been ordered to do so.  In light of the recession and mortgage foresclosure crisis, plus the fact that many mortgage loans are on homesteads with negative equity, this is a reasonable result.  If the children remaining in the homestead is required in the decree, such residence being in their best interests, it only seems consistent that the custodial parent should not put that residence at risk by failing to pay the mortgage loan.  Frequently judges hear disputes of this nature requiring the interpretation of real property provisions in divorce decrees prepared by pro se parties.  Since the trial court cannot modify the real property provision, the ability of a party to obtain post-decree relief may be severely limited due to their failure to provide a mechanism in the decree for handling either party's defaults in the payment of debts, including homestead mortgage loans.  Just another reason that proceeding without counsel in a divorce may result in serious unintended adverse consequences.

Thursday, August 12, 2010

Emergency, what emergency?...and Suggestions on Finalizing Divorce Settlements

EMERGENCY? 
There are certain times of the year when more "emergency" motions are presented to the court, often ex parte in nature, within a few weeks, and sometimes mere days, before events that in and of themselves can be stressful for children:
Christmas
The first day of school in September
The re-marriage/ wedding of one parent
Summer vacation

When these motions are brought we judges often hear the argument from counsel, "Judge, you must make a decision quickly because ____________ starts in just a few days."  When counseling clients that want to bring such last minute motions, lawyers may wish to remind their clients that their emergency may not be considered an emergency by the judge and that the judge has 90 days to make a decision.  The Court will most certainly inquire whether mediation has been attempted and, if not, why not.  I posted Judge Steve Aldrich's article on "emergency motions" in January; you can find it below under "older posts."

FINALIZING DIVORCE SETTLEMENTS
Check out comments by Anoka County Judge Alan Pendleton on p. 48 of the August issue of Bench & Bar about making a record to increase the chances of a settlement withstanding a motion to vacate a MTA.
I have commented on this in Older Posts below.

Thursday, August 5, 2010

Top Ten Reasons to Settle Your Divorce

Anoka County District Court Judge Kristin Larson discusses the top 10 reasons to settle a divorce on the Minnesota Judicial Podcast. See link in the right column.