FAQs Archive - Fogel Family Law

Q: As part of the divorce decree my ex-spouse said he/she would pay the credit card debt. Do I still have a legal obligation to those creditors?

Your ex-spouse may be in contempt of court for disobeying a court order. However, if you are jointly liable to a creditor, your ex-spouse's contempt of court will not excuse your non-payment. Your contract with the creditor exists notwithstanding and you are still responsible even if your ex-spouse fails to pay.

Q: Do I qualify for an annulment?

In order to obtain an annulment you must prove either that the marriage is void or voidable. Most people, howver, do not qualify for an annulment. You may be able to get an annulment if: A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity and the other party at the time the marriage was solemnized did not know of the incapacity; because of the influence of alcohol, drugs, or other incapacitating substances; because consent of either was obtained by force or fraud and there was no subsequent voluntary cohabitation of the parties; a party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party at the time the marriage was solemnized did not know of the incapacity; or a party was under the age of 18 years-old without parental consent and 16 years-old with parental consent.

Q: If someone signs a Recognition of Parentage (ROP) at birth do they have legal custody rights to the child?

No. The ROP establishes the legal father but the mother is presumed to have all legal custody rights until established otherwise through a court order. The parties may either agree upon an arrangement and submit a Stipulation and Order to the Court or they may file a Motion in the court system.

Q: When does the parenting expense adjustment apply?

There must be a court order for parenting time or parenting time is being determined in the current proceeding. See Minn. Stat. § 518A.36, subd. 1.

Q: If a parent is primarily staying home to care for a child or children (i.e. not working, or working less than full-time) will income be attributed to that parent?

Possibly, if home to care for a joint child. Definitely, if home to care for a non-joint child. The law includes a rebuttable presumption that a parent can be gainfully employed on a full-time basis. What used to be called "imputed income" is now called "potential income." See Minn. Stat. § 518A.32, subd. 5.

Q: How will the court obtain information about each party's income?

The law requires each party to file a financial affidavit with their pleadings. If a party does not serve and file a financial affidavit the court may set income for that party based on credible evidence before the court or may determine the party's potential income. See Minn. Stat. § 518A.28(a). A financial affidavit form has been drafted by the Department of Human Services as required by law. It can be found in supplemental materials or www.dhs.state.mn.us.