Minnesota Divorce and Family Law Blog

Study Group's Report on Joint Physical Custody Presumption

In a February 2008 blog entry, I mentioned that a bill came before the Minnesota Legislature to enact a presumption in favor of joint physical custody in Minnesota family courts.  The legislative committee referred the bill to a study group, whose charge was to consider the prospect of a joint physical custody presumption. 

The study group has issued its report with six non-comprehensive, non-unanimous recommendations.  The study group has recommended that the Legislature do the following:

1. Fund the collection of data regarding custody arrangements and parenting plans over several years;

2. Promote cooperative agreements in future custody and parenting legislation;

3. Continue to provide the family court the ability to consider individual needs of children and families in making custody and parenting decisions;

4. Consider the essential importance of the safety of children and parents;

5. Amend current statutes to make it clear that there is no presumption for or against joint physical custody (except for the rebuttable presumption against joint physical custody in cases involving domestic abuse); and

6. If there were a presumption of joint physical custody in the future, that the term be clearly defined, and its relationship to the determination of parenting time also be clearly defined.

While the study group worked under time limitations that precluded more comprehensive recommendations, the conclusions reached by the study group reflect thorough consideration of the issue.  

Dividing Personal Property

When a couple divorces, the personal property must be divided.  That includes households goods and furnishings, and general "stuff" in the home.  While the division of items can often be a contentious subject, family court judges discourage spouses from devoting too much time and emotion (and expense) to it.  

In many cases, the spouses divide the personal property when they establish separate households.  But in other cases, a spouse who has departed from the marital home may have living arrangements that are temporary, or lack sufficient space to accommodate half of the couple's belongings.  If one spouse has all (or nearly all) the personal property, there are several common resolutions, other than renting storage space.  The spouses may agree to an itemized division, memorialized in writing, to be implemented on a certain date, or within a certain time period.  It may be agreed that one spouse is keeping all, or nearly all, the property items (because the other spouse doesn't really want a lot of "stuff" anyway), the parties agree on a reasonable value for the items, and that value is accounted for in the overall division of assets and liabilities.  In some cases, a mediator or arbitrator is appointed to oversee the parties taking turns choosing items, one by one.  A garage sale, and division of proceeds, is a common idea that is not commonly implemented.  (The property items usually have more value to one or both spouses than they do to any third-party willing-buyers.)  

If the spouses must incur legal fees in a dispute about personal property, there may be a danger of spending more in legal fees than one would spend in replacing the disputed property items.  

There are family court anecdotes about judges unhappy with couples bickering over the stuff -- such as ordering one party to divide the items into two groups and allowing the OTHER party to choose one of the groups of items.  Or threatening to toss a disputed item out a fourth story window if the parties do not quickly resolve the dispute on their own.  In the end, it is better if the division of personal property is resolved without the need for the family court to make a ruling.