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Family Law

WHAT IS FAMILY LAW?

Fremstad Law Family Law attorney Lesley Foss provides clients with full-service family law representation.  “Family Law” consists of the areas of law involving children and parents, married couples, or other persons with a domestic connection.  Family Law encompasses divorce/marital dissolution, parental rights and responsibilities, residential responsibility (physical custody), parenting time (visitation), child support, and paternity.

Family Law matters can involve complicated financial issues as well as emotional issues involving children.  At Fremstad Law, we do our best to work differently with our clients to move their cases forward and to provide guidance and advice, minimize conflict, quickly and efficiently resolve matters in our client’s best interests, effectively advocate for our clients, and, when children are involved, to ensure that their best interests are truly being kept in mind.

The more input a client has into the outcome of a divorce, custody agreement, or other family law matter, the happier the parties generally are with the result and there is less likelihood of future conflicts.  Attorney Lesley Foss’ knowledge and experience allow her to be an effective advocate and representative for her clients.

Laws applicable in the Family Law context can greatly vary between North Dakota and Minnesota.  The information contained on these pages will pertain generally to North Dakota.  Lesley Foss is, however,licensed to practice in both states.

DIVORCE

Divorce involves some or all aspects of family law, depending on the property owned by the parties, their income, resources, and needs, and whether or not the parties have minor children. These aspects can include division of property and spousal support, parental rights and responsibilities, residential responsibilities, parenting time, and child support. Property division and spousal support vary among cases in regard to the percentages, amounts, and duration granted for each. In North Dakota, the Court looks to the Ruff-Fischer Guidelines to help determine these issues.

Each divorce and the length of time necessary to complete the divorce process can vary.  This can depend in part upon the amount of property, whether distribution and/or valuation any or all of that property is disputed, whether spousal support is requested, whether minor children are involved and the residential responsibility and parenting time arrangement requested, and whether calculation of child support is disputed.

Often times, parties will choose to settle a divorce without appearing in Court in front of a Judge.  This is often accomplished through utilizing Mediation (either privately or court ordered mediation) or through negotiations between parties’ respective attorneys.

Lesley can help guide, advise, and assist clients through this sometimes challenging process and explain the applicability of the law and procedure to each client’s unique individual situation and set of circumstances.

DIVISION OF PROPERTY

In North Dakota, property must be ‘equitably’ divided between divorcing parties.  This does not necessarily always mean an exactly equal division.  The court will use the Ruff-Fischer guideline factors to determine the division of marital property.

Property that can be subject to division in a divorce includes but is not limited to real estate, the marital home, retirement interests such as a 401K, IRA, or pension, cash, savings, vehicles, household goods, furnishings, and personal items.

The division of marital property in a divorce can also involve some post-Judgment aspects, including the preparation of quit claim deeds and qualified domestic relations orders.

SPOUSAL SUPPORT/SPOUSAL MAINTENANCE

Whether a court will award one party spousal support from the other either on a temporary or permanent basis is also determined by the Ruff-Fischer Guidelines.  Fremstad Family Law attorney Lesley Foss can assist clients in understanding the Ruff-Fischer Guidelines and how they apply in each case.

STIPULATED DIVORCE

If the parties agree as to all issues pertaining to their divorce, including all property, spousal support, and any parenting rights, responsibilities, and residential responsibilities, Fremstad Law can assist you in properly, accurately, and thoroughly drafting the necessary court documents.

A Stipulated divorce will result in the execution of a “Marital Termination Agreement” which, if the agreement is approved by the Court, serves as the basis for the court documents eventually signed by the Judge and entered as the Judgment and Decree by the County Clerk of Court.

Parental Rights and Responsibilities

DECISION MAKING

Decision making authority for a minor child, formerly referred to as “legal custody” refers to the ability and authority for a parent to have input into and make major decisions in a minor child’s life after a divorce or if two unmarried parents separate and end their relationship.  These rights and responsibilities are partially outlined by North Dakota law, and include the duty and responsibility to inform the other parent of major medical or issues involving the child, the ability to have input into and be involved in the child’s schooling and education (such as attending parent teacher conferences), and the right to have contact with the child by written or electronic means.

RESIDENTIAL RESPONSIBILITY AND PARENTING TIME

Residential Responsibility, formerly known as “physical custody” refers to which parent a minor child resides with after a divorce or in the case of unmarried parents ending a relationship, more than 50 percent of the time. Equal Residential Responsibility refers to arrangements where both parents have the child in their care an equal amount of time.   Residential Responsibility in North Dakota is determined by a court’s consideration of the thirteen Best Interests of the Child Factors and is a consideration in any divorce or action for parental rights and responsibilities involving minor children.

Parenting Time refers to the time that each parent, whether they have primary residential responsibility or not, spends with the child.  Generally, this involves either the Court ordering or the parties agreeing upon a specific schedule for each parent’s time with the child.

PATERNITY

When a child is born to unmarried parents, there must be a legal determination of that child’s paternity before a parent has any parental rights, responsibilities, or obligations to that child or before a parent will be ordered to pay child support.

Paternity can either be established by a voluntary acknowledgement process (a form filled out at the hospital upon the birth of a child to unmarried parents, or may also be signed later on), or bycourt order. It can be accomplished with or without genetic testing.

Children born during a marriage are presumed under the law to be the children of the husband. Even if parties are separated, but not yet divorced, the marital presumption of paternity likely applies. Lesley can assist in explaining the nuances of the establishing paternity process and the rights, duties, and obligations that accompany such an establishment.

CHILD SUPPORT

Any  time parents of a child no longer reside together, both have a legal obligation to provide for the care and support, including financial support, of a child.  This comes in the form of child support.  Child support in both North Dakota and Minnesota is determined by a party’s income, and is set by a specific formula in each state’s respective child support guidelines.  The starting point for determining a child support obligation is a party’s gross annual income.  The monthly child support obligation can also be effected by whether one party provides health insurance coverage for a minor child, incurs uncovered medical expenses for the child, and other factors outlined under the child support guidelines.

PRENUPTIAL AND ANTE NUPTIAL AGREEMENTS

In North Dakota, Prenuptial Agreements are contracts between two parties who intend to get married.  Antenuptial Agreements are the same type of contract, but take place after two parties have already married. The contract can address any issue the parties wish it to, and is most often designed to address the parties’ various rights, duties, obligations, and address what the parties will do with regard to disposition of property, both marital and pre-marital/non-marital in the event of a divorce.  This can include addressing distribution of various types of assets and debts, property, spousal support, and/or inheritances.

The one item that parties may not contract away the right to receive or the obligation to pay for in any prenuptial or antenuptial agreement is child support.

GUARDIANSHIPS

In North Dakota, a guardianship is a legal relationship created between a guardian and a proposed ward that allows the Guardian to make certain decisions for the proposed ward that the ward is unable to make for themselves.  Whether the need for the guardianship is due to a proposed ward’s status as a minor child and a biological or legal parent’s inability to care for the minor child, or if the proposed ward is over the age of 18 but is incapacitated in some manner, Fremstad Law can assist parties in deciding what type of guardianship petition may be necessary and appropriate.  The court determines the extent of the guardian’s powers over the proposed ward and any limitations on those powers.  A guardian is also required to make a yearly report to the Court.

In the case of a guardian of a minor child, guardianships are often put in place for a temporary or an extended/permanent time period when a child’s biological parent is unable or unwilling to care for a child, and the guardian (often a relative such as a grandparent, aunt, or uncle) must make medical, educational, or financial decisions for the minor child.

There are specific standards, duties, and obligations that a guardian has to the ward, both in cases of an incapacitated adult an in cases of minor guardianships.  The guardian must act in the ward’s best interests, and in cases involving incapacitated or adults with limited capacity, shall engage and involve the proposed ward in making decisions to the greatest extent possible.

ADOPTIONS

Adoption is a legal process that transfers or terminates all legal parental rights, responsibilities, duties and obligations of a biological parent for and to a minor child, and gives them to an adoptive parent.  After an adoption process is completed, the minor child is issued an amended birth certificate reflecting the change from the biological to the adoptive parent.

Among the types of adoptions are step-parent adoptions, validation or recognition of international adoptions, and relative or grandparent adoptions.  The legal procedure and requirements can vary from state to state as well as according to what type of adoption is being sought.  In the case of a step-parent adoption, for example, the most common type of adoption, a petition is prepared and signed, all relevant and necessary parties are served with the petition and supporting papers, and any necessary consents must also be obtained, signed, and filed.

Consent to the step-parent adoption is not required in cases where a parent has abandoned the relationship with the child or failed to pay required child support for a specific period of time.

A hearing is held and the child must attend this hearing.  Upon entry of the final Adoption Decree, in North Dakota the Department of Vital Records will then issue an amended birth certificate upon completion and filing of some form paperwork.

If you have questions regarding any adoption process, Fremstad Family Law Attorney Lesley Foss can assist you.

NAME CHANGES

Changing an individual’s name, whether as part of a divorce process or otherwise, is a relatively simple legal process.  A name change must not be pursued to evade creditors or law enforcement.  Parents may also petition to change the name of their minor children with certain limitations.

A party may change their surname in the context of a divorce.  A separate legal process can also accomplish a name change.  Lesley can explain the process, prepare the necessary petition and affidavits, ensure the necessary notices are published in the local newspaper, and can prepare and assist properly filing the matter with the Court.

ORDERS FOR PROTECTION

If an individual is experiencing domestic violence or threats of domestic violence, as those terms aredefined by North Dakota Law, perpetrated by a family member (spouse, former spouse, child, parent, individuals in a dating relationship, or a joint child’s other parent), the individual against whom the domestic violence or threat of domestic violence is committed may file a petition for a Domestic Violence Protection Order.

Based on a written petition and affidavit by the person applying for the Domestic Violence Protection Order, setting forth the factual basis for the petition and the reasons the applicant believes there is a need for an Order, the Court can issue the order “Ex Parte” without a hearing.  This is a temporary order granting the requested relief until such time as a hearing can be held and the individual against whom protection is sought will also have an opportunity to present evidence and be heard and explain why he or she should not have a “permanent” domestic violence protection order against them issued.  At the hearing the Petitioner must present sufficient, competent evidence and testimony that there is a need for a permanent order.  The Court determines the length of time which any permanent order will be put into place.

A Domestic Violence Protection Order forbids a party from contacting the protected party in any way, except in ways that are spelled out in the order itself.  The Order can also prohibit the party from entering or coming within a certain distance of the protected party’s home or place of employment.  A Domestic Violence Protection Order can also address, on a temporary basis, issues of residential responsibility and parenting time, parenting time exchanges, or other matters involving minor children.

MEDIATION

Mediation is a dispute resolution process frequently utilized in the Family Law context.  In disputed residential responsibility or divorce cases involving minor children, the State of North Dakota requires parties to attend and make a good faith effort at resolving their dispute through mediation.  The State provides parties with up to six (6) free hours of mediation, and parties will receive a schedule and order for mediation with an assignment of the name and contact information for the qualified neutral mediator upon the filing of the action with the Court.

A non-judicial neutral mediator, most often an attorney with specific training and education in mediation, facilitates communication between parties to assist the parties in reaching voluntary decisions related to their dispute. This process is governed by North Dakota Rule of Court 8.1.  A key advantage to mediation is that parties have more control over the outcome of their dispute than if left to a judge’s decision.  That does not necessarily mean that a party should forgo representation by an attorney.  At mediation, Fremstad Law attorney Lesley Foss can help guide you through the mediation process, explain the benefits and drawbacks to different options and proposals, and assist clients in making decisions.

The information contained herein on this website is to be considered general and informational in nature only. Any articles, blog postings or other information on these pages should not be considered legal advice, referred to for legal advice, and cannot be considered to create any attorney/client relationship. If you need legal advice about a particular family  law matter and wish to inquire about Lesley Foss or any other Fremstad Law attorney representing you, please contact the Fremstad Law Firm at (701) 478-7620. 

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