Research Suggests That New Dads Can Suffer Depression Too

Written By: Gadtke & Beyer, LLC | Published On: 21st June 2010 | Category: Uncategorized | RSS Feed | Comments

In a study published in the May edition of the New England Journal of Medicine, researchers have found that a significant number of men also experience postpartum depression-like symptoms following the birth of a child. While previous research had been limited to women – the condition was thought to be caused primarily by hormonal changes following a pregnancy – new research suggests that more than 10% of all new fathers can also expect to deal with the issue. The percentage of new fathers affected by the baby blues is much higher than the prevalence of depression in men generally, which averages around 4.8%. Women remain disproportionately affected by the disease, however, showing postpartum depression rates of nearly 24%.

Researchers believe the incidence of postpartum depression in men is likely caused by the same factors that contribute to it in women. These factors include sleep deprivation, stress in the relationship, and isolation from friends.

While the underlying causes may be the same, men exhibit significantly different depression-related symptoms. Depressed men tend to exhibit more hostility and even aggression, whereas depressed women tend to become sad. The differences are important because the more aggressive reaction creates a greater potential for abuse. Some men attempt to avoid feelings of being overwhelmed or trapped by working more and spending less time with family.

Studies have shown that untreated parental depression can negatively impact children. Children of depressed parents have approximately twice the risk of behavioral and emotional problems when compared to child raised in homes where depression was not present. These problems can be compounded by the fact that many men are reluctant to receive mental health treatment.

More information on the issue of postpartum depression and men can be found on the website www.postpartummen.com.

by Robert W. Gadtke

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Maybe Children Aren’t Such a Downer After All?

Written By: Gadtke & Beyer, LLC | Published On: 18th June 2010 | Category: Uncategorized | RSS Feed | Comments

At one time or another, most married people have had a single friend tell them that “the research” indicates childless couples tend to be happier than couples with children. I cringe every time I hear this statistic. Why are you telling me this, I ask? I already have two young kids. It’s too late for me.

Unfortunately our single friends are right – the research does show that couples without children tend to be happier. But, what they don’t tell you is that the happiness gap is really, really small. Data from the National Opinion Research Centers General Social Survey, which is regarded as the gold standard among researchers who study these types of things, shows that when you compare Americans with the same age, marital status, and church attendance (you need to control for these type of factors because people who are older, married, and church-going tend to be happier and have more kids), every additional child a person has makes them just 1.3 percentage points less likely to rate themselves as “very happy.” Not a big number. Especially when you consider that marriage typically boosts a person’s happiness by about 18 percentage points.

What’s even more encouraging for parents like me is that child number 1 seems to do the most happiness damage. The first child decreases a couple’s likelihood of being “very happy” by 5.6 percentage points. But, the effect of later born kids is negligible.

The best response to those friends who claim to be happier without children is tell them about research dealing with long-term life satisfaction. When researchers asked, “If you had to do it over again, would you or would you not have children?” 91% of parents said yes. Only 7% said no. And their answers don’t seem to be driven by after-the-fact rationalizations. When childless couples were asked a similar question, “If you had to do it all over again, how many children would you have, or would you not have them at all?” only 24% of respondents said that they would choose to not have children the second time around.

What does all of this mean? For most people, it means that life is better with kids. Try to remember this the next time your kids don’t sleep through the night or get into trouble at school.

by Robert W. Gadtke

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The Brave New World of Income Tax Exemptions

Written By: Gadtke & Beyer, LLC | Published On: 11th June 2010 | Category: Uncategorized | RSS Feed | Comments

In a new regulatory change beginning tax year 2009 – which for us non-tax professionals means income tax returns filed on or after April 15, 2010 – the IRS now requires noncustodial parents wishing to claim the income tax exemption for a minor child to either file Form 8332 or to have a divorce decree that unconditionally permits the claiming of the minor child in certain years.

Using Form 8332 is not new. I frequently advise my clients use it. But, Form 8332 requires the custodial parent’s signature. And, in some cases, that can be difficult to obtain given the hostility between the parties. In the past, noncustodial parents would deal with this situation by attaching a copy of their Judgment and Decree. If both parents attempted to claim the child, an audit would result. The IRS would figure out who was entitled to claim the child. The new rules now allow a noncustodial parent to claim the child only if the divorce decree is unconditional.

In most divorce decrees – I dare say nearly all competently drafted ones – the noncustodial parent’s right to claim the income tax exemption is conditional. It is usually conditioned on a parent being current in his or her child support obligation by the end of the year. Thus, for many noncustodial parents Form 8332 is the only option.

If you are a noncustodial parent and the custodial parent is wrongfully refusing to execute Form 8332, you should contact a family law attorney to file a motion in family court to get an order compelling the execution of the form.

For more information on this issue please don’t hesitate to contact one of the attorneys in our office.

by Robert W. Gadtke

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The County Attorney that Did

Written By: Gadtke & Beyer, LLC | Published On: 10th June 2010 | Category: Child Support | RSS Feed | Comments

In a long overdue policy change that is supposedly no change at all, the Ramsey County Attorney’s Office has begun filing motions to modify child support in cases where the child support payor is receiving unemployment benefits. Anyone who believes this non-change is insignificant hasn’t been to family court lately.

Under existing law, county attorneys are permitted to bring motions to establish or modify a child support obligation on behalf of custodial parents who either receive public assistance benefits or who apply for child support services. They do not typically participate in most family court cases. And they do not represent child support payors. Their ability to bring these types of motions stems from the federal government’s desire to recoup at least a portion of the cost of welfare payments, which are disproportionately paid to mothers who do not receive child support from their child’s father.

Standard practice has traditionally required child support payors to commence motions to modify child support at their own expense. This imposes a substantial burden on people who recently lost their job. Ramsey County’s approach recognizes this fact. It also recognizes that a failure to timely file a motion to modify child support usually results in an unfair and unalterable imposition of debt – child support laws prohibit retroactive modification of child support orders.

Whether this policy is actually new or just new to us, I commend Ramsey County Attorney Susan Gaertner for recognizing that in a state with more than seven percent unemployment, not all unemployed child support payors are intentionally dodging their child support obligation. Given the depth of the recent recession, maybe some of the other county attorneys will follow her lead. Then again, maybe not.

by Robert W. Gadtke

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Cost-Benefit Analysis

Written By: Gadtke & Beyer, LLC | Published On: 8th June 2010 | Category: Uncategorized | RSS Feed | Comments

It is the rare case, if not the non-existent one, where divorcing couples agree on absolutely every issue. Whether it is a disagreement about a parenting time schedule or a division of personal property, there is almost always some level of disagreement between the parties. For purposes of completing the divorce, though, the real question is whether the disagreement is worth fighting over. I recently had a case in which the parties could not agree on parenting time for their son over the Thanksgiving holiday. The parties seemed to lose sight of the fact that their son was already 15 years old, and that there was only three more Thanksgivings to divide. When viewed in this context, it hardly seemed worthwhile to pay lawyers to argue over three days.

The same type of analysis can present itself when dealing with financial issues. Many times clients cannot agree on how to divide an income tax refund, for example. If neither side is willing to give in, they will have to pay their lawyers to draft letters and perhaps even a court motion to resolve the issue. By the time this happens, the clients could have paid more to their attorneys than the refund was even worth! For this reason, I often counsel clients to engage in a cost-benefit analysis to determine how much it will cost to pursue an issue that remains disputed, and whether that cost is worth the potential benefit if successful. When both parties understand the cost-benefit type of analysis, the chances of reaching a compromised settlement in a divorce increase greatly.

by Marcus P. Beyer

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The Duration of Spousal Maintenance

Written By: Gadtke & Beyer, LLC | Published On: 6th June 2010 | Category: Spousal Maintenance | RSS Feed | Comments

Once you get past the question of whether spousal maintenance should be paid, the focus shifts to how much and for how long. In this post, I deal with the question of how long a person should be required to pay spousal maintenance.

Determining the exact length of a maintenance obligation is difficult. While the law sets forth eight factors courts are supposed to consider when setting a maintenance award, often times, the analysis boils down to two things: the length of marriage and the ability of the recipient spouse to become self supporting at some point in the future.

Judges sometimes attempt to avoid the law’s detailed analysis by using another measurement as a proxy. I have known at least one judge who simply divided the length of the parties’ marriage by 2, and, presto, out popped the magic maintenance number. While this approach has absolutely no support in Minnesota law, it is frequently used by courts.

If it is difficult to determine exactly how long spousal maintenance will need to be paid, it is usually possible to group spousal maintenance awards into one of two categories: permanent spousal maintenance or temporary spousal maintenance. For some people, the labels themselves evoke an immediate emotional response. Spousal maintenance payors tend to be opposed to paying anything called “permanent maintenance.” Spousal maintenance recipients are usually worried that “temporary maintenance” will be insufficient to meet their needs long-term. Yet, as emotionally troubling as these labels may seem, it is important to understand that “permanent spousal maintenance” is not always permanent and “temporary spousal maintenance” is not always temporary.

Permanent spousal maintenance simply means that the payor spouse bears the burden of proving that the terms of the maintenance award should be changed at some point in the future. In order to do this, the payor spouse would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused the existing order to be unreasonable and unfair. Examples of legitimate changes include things like retirement and unemployment.

By contrast, a temporary spousal maintenance award is for a fixed period of time. If the person receiving spousal maintenance wants to extend the award beyond the fixed term, they would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused continued maintenance to be required. The purpose of temporary spousal maintenance is to give the recipient time to become self supporting.

Between the two extremes of permanent spousal maintenance and temporary spousal maintenance, exist the new, more flexible “hybrid” type awards. These awards combine elements from both the permanent and temporary categories. Currently, there are two types of hybrid awards being used in Minnesota. The first type is a form of permanent spousal maintenance where the court imposes some kind of rehabilitative obligation on the recipient spouse. Thereafter, the court periodically reviews the award to determine if and when the spouse becomes self-supporting. This is significantly different from the traditional form of permanent spousal maintenance where the recipient spouse has no obligation to ever become self-supporting.

The second type of hybrid award is a form of temporary spousal maintenance (for a term of years), which is reviewed de novo – as if the court were awarding spousal maintenance for the first time –at the end of the term. This type of award avoids imposing burdens of proof on either party and is not seen as precedent setting. It gives the recipient spouse time to become self supporting, without disadvantaging either party. It is used most frequently when the dispute is not “if” a spouse will become self-supporting, but “when” it will occur.

In December 2009, the Minnesota Court of Appeals had the opportunity to address the question of whether it was proper for a trial court to use the hybrid form of temporary spousal maintenance. The case involved two people who had been married for 19 years. At the time of their divorce, the spousal maintenance recipient was employed, but was not earning income at a level sufficient to be self supporting. After a trial, the court found that while it was impossible to determine exactly when the spousal maintenance recipient would become self supporting, it was certain that she would do so at some point in the future. Thus, the court ordered the hybrid form of temporary spousal maintenance described above.

On appeal, the Minnesota Court of Appeals affirmed the trial court’s decision, finding that it was acceptable to use the hybrid form of temporary spousal maintenance because it was certain that the recipient spouse would become self supporting at some point in the future.

The case is Maiers vs. Maiers, 775 N.W.2d 666 (Minn. Ct. App. 2009).

by Robert W. Gadtke

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Nonmarital Property, the Supremacy Clause, and potentially Harsh Consequences

Written By: Gadtke & Beyer, LLC | Published On: 4th June 2010 | Category: Property Division | RSS Feed | Comments

If you are familiar with the concept of nonmarital property under Minnesota law, you know that nonmarital property is not typically divided between the parties at the time of a divorce. Instead, the property stays with the party who owned it before the marriage or who acquired it by gift or inheritance at some point during the marriage. The rule against dividing nonmarital property makes proving a client’s “nonmarital claim” an important part of any property division.

But, like many things in law, the rule against dividing nonmarital property is not absolute. The Court has the power, in cases where the parties have relatively few marital assets and one of the parties has significant nonmarital assets, to “invade” or apportion up to one half of that spouse’s nonmarital property. In order to do so, however, the Court must find that a “spouse’s resources or property are so inadequate that the division of only the marital property would work an unfair hardship” upon them. Minn. Stat. § 518.58, subd. 2 (2009).

At first glance, this exception may seem to swallow the rule. I have certainly worked on cases where the only real asset is a party’s nonmarital property. It would seem, in those cases, that the Court should invade a spouse’s nonmarital property. But, in practice, it doesn’t usually work that way. Convincing a Court to invade a spouse’s nonmarital property is difficult. You need to show evidence of serious hardship. The mere fact that a spouse ends up with less (or even little) in the way of property is generally insufficient. The exception is used by Courts to prevent cases of serious injustice.

In December 2009, the Minnesota Court of Appeals confronted the question of whether federal law protects certain types of nonmarital property from invasion or division, even in cases of unfair hardship. The case involved life insurance and death gratuity benefits paid to the parents of a fallen U.S. service member. Prior to the service member’s death, he had designated his mother (and not his father) as his sole beneficiary for purposes of life insurance and military death benefits. Four years later, when his parents divorced, the mother argued that the life insurance and death benefits were her nonmarital property because she had received them from her son as either a gift or inheritance during the marriage. In deciding the issue, the divorce court found that the life insurance and death benefits were, in fact, the mother’s nonmarital property but divided them between the parties using an unfair hardship theory.

On appeal, the Minnesota Court of Appeals reversed. It held that federal law prohibits division of military life insurance and death gratuity benefits. The beneficiary named by the service member controls. All proceeds must be paid to that person. The divorce court lacks the power to divide the military benefits, even in cases where a failure to divide them would result in an unfair hardship.

To understand the real world consequences of this rule, consider the father’s circumstances in the case above: The father was 67 years old. He had no bank accounts, retirement savings, or pension. He had no vocational training and had never reached high school. He had not held full-time employment since 2002, and his only source of income was monthly Supplement Security Income payments of approximately $424. He had employment restricting health problems and lived with his elderly mother. His only assets were a 17 year old Ford and an entitlement to half of the proceeds from the sale of the parties’ modest home.

How much did the mother receive? More than $500,000.

Lesson: Carefully review any federal beneficiary designations to ensure that they accurately reflect the intent of the employee or service member. Don’t assume that the divorce court can protect your interests at a later date.

The case is Angell v. Angell, 777 N.W.2d 32 (Minn. Ct. App. 2009).

by Robert W. Gadtke

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Minimizing the Effects of Divorce on Children

Written By: Gadtke & Beyer, LLC | Published On: 2nd June 2010 | Category: Child Custody | RSS Feed | Comments

If you are reading this posting, chances are pretty good that you are either involved in, or are considering getting, a divorce. If so, there are a few things you need to know. Ending a marriage can be a difficult process. It is one that can hurt everyone involved, especially children. Research has consistently shown that more children of divorced parents have behavioral problems than children from nondivorced families. Depending upon which study you believe, children from divorced families demonstrate more acting out, aggression, depression, difficulty with peers, and school problems than other children. Some research has found as many as 20 to 25 percent of children from divorced families have behavioral issues.

But, before you decide to stay in an unhappy marriage for the sake of your children, you need to know that staying in the relationship has consequences too. Research suggests that the worst problems for children result from situations involving high parental conflict – even when that conflict occurs within the context of a marriage. Children who live in high conflict families tend to have more severe behavioral problems than children from any other type of family structure, including children from divorced households. Children of these high conflict families tend to be more depressed, more impulsive, and more hyperactive, than even those at-risk children from divorced families.

Thinking of throwing in the towel? Before you do, it is important to understand that the damage caused to children in divorced and high-conflict families does not a result from a change in the family structure per se. In other words, it is not the parents’ separation that actually harms the children. It is other things that really do the damage. Children are damaged by instability and fighting, which often accompany a divorce, not the physical separation. Things like school changes, financial issues, relocation, and poverty have all been linked to decreased outcomes in children.

Because the damage is not a result of the divorce itself, there are things that you can do to help protect your children. Remember, if 25 percent of children from divorced families are in trouble, that means that 75 percent of them are not. Here are some of the things that you can do to give your kids the best chance for success:

Tips for Minimizing Damage to Children

1. Ensure Effective Custodial Parenting: As frustrating as it may seem for the soon-to-be-noncustodial parent, it is essential that you support the well-being of the custodial parent. For children to do well, custodial parents have to be functioning at a relatively high level. Single parenting is a difficult task. Depression, anger, or economic troubles can distract from effective parenting. Your kids depend on it.

2. Minimize Conflict between the Parents: This is the single most important factor in promoting positive outcomes for children. Studies have shown that children of high conflict families are two to four times more likely to have behavioral issues than children more generally. Sometimes, not fighting is the best decision you can make. Understand, though, that this won’t be easy. It will take time to figure out. Divorce causes a lot of hurt feelings. In the five years following a divorce, only 25 to 50 percent of parents manage to effectively engage in cooperative co-parenting. As many as 40 percent of divorced parents end up parallel parenting, not in conflict but not cooperating either. Try hard to put your children’s interests above your own. It is possible for people to manage their anger, even if they don’t like their ex-spouse.

3. Don’t Badmouth the Other Parent: Contrary to popular belief, badmouthing your ex-spouse does not make your child like you more. If anything, the opposite is true. Children hate it when parents badmouth each other. No matter how much you dislike your ex-spouse, your child does not (and will not) feel the same way. You only hurt your child’s feelings when you badmouth the other parent. Do not explain the other parent’s short-comings. Do not ask them to take sides. And do not ask them to keep secrets.

Raising children is hard work. Raising them in the context of a divorce can be even more challenging. Don’t give up.

by Robert W. Gadtke

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The Importance of Legal Counsel

Written By: Gadtke & Beyer, LLC | Published On: 31st May 2010 | Category: Divorce Process | RSS Feed | Comments

If you are anything like most of my clients, the past few years have probably been difficult for you, both emotionally and financially. The downturn in the U.S. economy has contributed to a desire, amongst many people, to try to conserve their limited financial resources. In family law, this has manifested itself by people trying to get divorced without using a lawyer.

Deciding not to hire a lawyer, at least statistically, is not unusual. Recent data from Hennepin County Family Court shows that more than seventy-five percent (75%) of all divorce cases involve at least one pro se party. In other words, most cases in Minneapolis have at least one person, who, for whatever reason, has decided not to hire a lawyer. This surge in unrepresented people has forced the court system to take drastic steps – everything from expanding self-help centers to mandating additional ADR to making the process more consumer-friendly –in an effort to squeeze the masses through the complicated web of legal rules and procedures.

The fact that people survive a divorce without legal counsel, however, does not mean that others should follow their lead. Most unrepresented parties I encounter are unrepresented by necessity, not by choice. They simply can’t afford to hire a lawyer. If they could, they would. It is rare that I encounter someone who actively does not want the help of an attorney.

But, you respond, “You’re a lawyer. Obviously you are going to recommend that I hire one. It’s how you make your money.” That’s right. I am. And I do. That doesn’t mean I’m wrong, though. Surgeons make money by operating on people; yet we don’t think we could do the job as well ourselves. That’s why we hire a professional. The same is true in law.

Unlike health issues, however, you don’t begin to feel sick when you’ve made a bad legal decision. Most bad legal decisions don’t manifest themselves until it is too late to correct them. When your case is finished (or a temporary order is issued), it’s done. A lawyer can’t ride in to save the day at that point. You don’t get a “do over” because you didn’t hire a lawyer. It doesn’t work that way.

One instance where this is becoming more of a problem is in the context of court-ordered mediation. If you agree to a mediated settlement agreement, you will likely be bound by its terms, even if you later change your mind after talking to a lawyer. Understand that the role of a mediator is to reach agreement, not to advocate for your best interests. Be careful what you agree to. Sometimes the desire to simply have the process “over” can lead to bad long-term decision making.

Our job is to guide you through the process. We give you options. We discuss strategy. We make recommendations. Then we take direction from you.

by Robert W. Gadtke

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Out of State Child Support Orders

Written By: Gadtke & Beyer, LLC | Published On: 29th May 2010 | Category: Child Support | RSS Feed | Comments

Sometimes, following a divorce or paternity adjudication, one or both of the parties may decide to move to a different state. While out-of-state moves present a number of important challenges – in many cases, it can become nearly impossible for the noncustodial parent to remain actively involved in the child’s life – people often ask about potential child support implications. Can the existing child support order be changed or enforced in the new state? How will child support be calculated in the future?

In Minnesota, these types of issues are governed by the Uniform Interstate Family Support Act (“UIFSA”). See Minn. Stat. § 518C. And, in most cases, the answers are extremely fact specific. What is true in one case may not be true in another case. It is difficult to generalize. It is important for you to consult an attorney about the facts of your case.

Recently, however, the Minnesota Court of Appeals attempted to define the outer edges of the out-of-state modification doctrine. In Hennepin County v. Hill, the Court confronted the question of whether a Minnesota court could modify the duration of a child support order originating from Mississippi, once the order had been registered in Minnesota for purposes of enforcement and modification. In rejecting the father’s request that his child support obligation be shortened, the Court explained that the law treats the duration of a person’s child support obligation as a “nonmodifiable” term. Because the term is “nonmodifiable,” and because the term originated from a Mississippi order, the father was required to continue paying child support until his obligated ended, as determined by Mississippi law.

Labeling the duration of a child support order as “nonmodifiable” is important because states have different rules regarding how long a person is obligated to pay support. In Minnesota, for example, a child support obligation typically ends when the child turns age 18, or age 20 if they are still in secondary school, whichever is later. Minn. Stat. § 518A.26, subd. 5 (2009). Parents do not pay child support while a child is in college. But, in Mississippi, the law obligates a parent to pay child support until the child turns age 21, with certain limited exceptions. The difference, which is three (3) years of after tax child support payments, can be substantial.

The case is Hennepin County v. Hill, 2010 WL 274651 (Minn. Ct. App. 2010).

by Robert W. Gadtke

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