PRESUMPTIONS IN FAMILY LAW
By Edward L. Winer and James J. Vedder
Minnesota Family Law Institute
March 2013
4800 WELLS FARGO CENTER
90 South Seventh Street
Minneapolis, MN 55402-4129
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E: [email protected]
W: LawMoss.com
Presumption
I.
INTRODUCTION.
There are a number of key presumptions in family law that often confuse litigants
and are misstated or misapplied. Knowing what the presumptions are and how
they apply to a case can be a key to reaching a fair settlement or effectively
presenting the case to the Court. Misunderstanding of a legal presumption can
lead to unrealistic expectations in settlement negotiations or at Court and result
in unnecessary attorneys' fees.
II.
WHAT IS A PRESUMPTION?
A legal presumption is defined as, “A legal assumption that a court is required to
make if certain facts are established and no contradictory evidence is produced.”
Black’s Law Dictionary. Not all presumptions apply automatically. Some
presumptions, such as the presumptions for legal custody, parenting time, marital
property, duration of spousal maintenance, child support guidelines, and
Antenuptial Agreements enforceability, require that the party hoping to benefit
from the presumption establishes a factual foundation before the presumption will
be applied. The requirements for application of these presumptions differ, and
the benefit is not available if the underlying requirements are not proven to exist.
A.
REBUTTABLE PRESUMPTIONS.
Most family law presumptions are rebuttable presumptions. A rebuttable
presumption is defined as, “An inference drawn from certain facts that
establish a prima facie case, which may be overcome by the introduction
of contrary evidence.” Black’s Law Dictionary. A practitioner should think
of a rebuttable presumption as a starting point rather than an ending point.
B.
CONCLUSIVE OR IRREBUTTABLE PRESUMPTIONS.
There are a few conclusive or irrebuttable presumptions (hereinafter
“conclusive presumptions”) in family law. A conclusive presumption is
defined as, “A presumption that cannot be overcome by any additional
evidence or argument.” Black’s Law Dictionary. A conclusive presumption
is both the starting point and the ending point. A practitioner cannot
produce enough evidence to overcome a conclusive presumption. If the
presumption is a conclusive presumption, then once the factors necessary
to establish it are proven, the Court must apply it. The Court does not
have discretion to choose not to follow a conclusive presumption, but, as
addressed below, good lawyering may soften the impact or otherwise
change the impact of the conclusive presumption.
Family law litigants often believe that all presumptions are conclusive.
More often, however, a presumption is “rebuttable,” meaning it is a legal
assumption the Court is required to make if certain facts are established,
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but the Court need not apply the presumption if the evidence received
overcomes the presumption's application. The practitioner should begin
their analysis by first determining whether a presumption is rebuttable or
conclusive. If it is rebuttable presumption then the practitioner needs to
consider what evidence to produce to have the presumption apply if it
favors your client, or alternatively, how to rebut the presumption if it does
not favor your client.
III.
KEY FAMILY PRESUMPTIONS IN MINNESOTA.
Practitioners and parties need to know what the presumptions are in family law
and how they impact the case. The presumptions can either be found in statute
or case law. The Practitioner needs to become familiar with the presumptions in
the law to know how to prepare their case for settlement or for litigation if they
are unable to settle.
A.
CUSTODY PRESUMPTIONS.
1.
LEGAL CUSTODY PRESUMPTIONS.
There is a rebuttable
presumption in favor of joint legal custody if one or both parties
request it. Minn. Stat. § 518.17, subd. 2. But, there is a rebuttable
presumption that joint legal or physical custody is not in the best
interests of the child if domestic abuse, as defined in Minn. Stat.
§ 518B.01, has occurred between the parties.
Applying the rebuttable presumption for joint legal custody, means
that both parents will “have equal rights and responsibilities,
including the right to participate in major decisions determining the
child’s upbringing, including education, health care, and religious
training.” Minn. Stat. § 518.003, subd. 3(b). If a practitioner is
seeking to have the joint legal custody presumption applied,
evidence must be presented that such a result is in the best
interests of the parties’ child. This evidence typically shows that the
parties are able to cooperate or have a means of dispute resolution
that allows for the resolution of disputes. See Estby v. Estby, 371
N.W.2d 647, 649 (Minn. App. 1985)(joint legal custody should only
be granted where the parents can cooperatively deal with parenting
decisions); McKee-Johnson v. Johnson, 429 N.W.2d 689, 692
(Minn. App. 1988) rev’d on other grounds by McKee-Johnson v.
Johnson, 444 N.W.2d 259 (Minn. 1989). If the practitioner is
seeking to rebut the presumption, evidence should be provided that
the parties are unable to agree, have an inability to communicate or
there are animosities between them. See Wopata v. Wopata, 498
N.W.2d 478, 482 (Minn. App. 1993)(award of sole legal custody
appropriate where parents unable to agree, have significant
animosities between them, and communication between them is
impossible); Digatono V. Digatono, 414 N.W.2d 498, 502 (Minn.
2
App. 1987)(award of sole legal custody warranted due to intense
turmoil in parents relationship) rev. denied (Minn. Jan. 15, 1988);
Nies v. Nies, 407 N.W.2d 484, 487 (Minn. App. 1987)(sole legal
custody appropriate where evidence demonstrated the parties’
inability to communicate, frequent visitation problems, and their
general dislike for each other); Anderson v. Anderson, 360 N.W.2d
644, 646 (Minn. App. 1985)( award of sole legal custody
appropriate due to parties’ intense anger towards one another
which resulted in “tug of war” over child); Heard v. Heard, 353
N.W.2d 157, 160-61 (Minn. App. 1987)(joint legal custody award an
abuse of discretion where parties inability to communicate lead to
quarrels that caused stress for the children).
The rebuttable presumption that there should not be joint legal or
joint physical custody if there has been domestic abuse as defined
in Minn. Stat. § 518B.01, will come into play any time there is an
Order for Protection involving the parties. The party seeking to
have the presumption applied must prove that domestic abuse has
occurred. Note that the statute does not require that there be an
Order for Protection, but rather it must be proven that domestic
abuse has occurred between the parties. The party seeking to
apply the presumption should also provide evidence that joint
custody is not in the best interests of the child due to the abuse,
inability of the parties to communicate and related factors. The
party seeking to overcome the presumption should provide
evidence that the parties are able to communicate and that there
are protections in place to safeguard both the children and the
abused party. Even with such evidence it still may be difficult to
overcome the presumption depending on the severity of the abuse.
2.
No Physical Custody Presumption. There is no presumption on
physical custody, either for or against joint or sole physical custody.
There is case law that indicates physical custody is not a preferred
arrangement Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn.
App. 1993). The case law does not create a presumption and
appears to be somewhat dated and not reflective of the current
views of the physical custody issue which supports both parents
being actively involved in parenting children, where possible.
There has been a considerable amount of discussion in the
Minnesota Legislature regarding whether there should be a
presumption in favor of joint physical custody.
As of this
presentation no such law has passed, but it will likely be raised
again.
3.
Parenting Time Presumption. There is a rebuttable presumption
that a parent is entitled to receive at least 25% of the parenting time
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for the child. Minn. Stat. § 518.175, subd. 1(e). This presumption
on parenting time is cited routinely in both mediation and in
litigation. The presumption is often subject to the developmental
stage of the child, the child’s bonding/attachment to the parents, the
parents' skills and the performance of the parties’ parenting
responsibilities during the marriage.
A party seeking to have the presumption applied should present
evidence that the child is developmentally ready to have at least
25% parenting time with the noncustodial parent. For instance, an
infant may not be ready to have 25% of the parenting time with a
parent, whereas a five year old may. The parent seeking to
establish the presumption should present evidence that the child is
bonded and attached to that parent. If the child is not bonded and
attached to the parent, he/she may need a more graduated
schedule to receive the presumptive amount of parenting time.
Evidence should also be provided about the parent’s parenting
skills (i.e. how involved was the parent with the child during the
marriage, what parenting did the parent provide, was the parent an
effective parent, etc.).
The parent seeking to rebut the presumption should prove that the
child is not developmentally ready for 25% of the time with a child.
This may be the case if the child is very young. Additionally, the
parent can show that the child is not bonded or attached to the
noncustodial parent or the person is not a good parent. Such a
showing should result in a more graduated schedule. Additionally,
the party can prove that other parent does not have the skills to
parent the child at least 25% of the time.
Ultimately this presumption comes down to the best interests of the
child and may result in more or less than 25% of the parenting time
with a child. It requires a case by case analysis of what will be best
for the child and is very fact specific. One should not simply rely on
this presumption, as it is very fact specific.
As with physical custody, the Minnesota Legislature has examined
whether to expand this presumption. Although the presumption has
not been expanded to 35% or 45.1%, as has been discussed, the
practitioner should watch legislative developments to keep on top of
changes to this presumption and related presumptions.
4.
CUSTODY MODIFICATION PRESUMPTION. When a modification
of custody is sought, the Court is to assume the facts alleged in the
moving parties’ pleadings are true for purposes of making a prima
facie showing for modification. In re Weber, 653 N.W.2d 804, 809
(Minn. App. 2002).
However, the Court may take note of
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statements in the nonmoving party’s pleadings that explain the
circumstances surrounding the accusations. Id. When seeking to
have this presumption apply, the practitioner should assert facts
that make a prima facie case. Just assuming the facts in the
pleadings are true does not prove a prima facie case for
modification has been made. The responding party should provide
facts that surround the allegations to give them context and
persuasiveness. For instance, if the moving party alleges that the
custodial parent shoved the child to the ground and caused multiple
bruises, that would support a modification of custody, unless it was
in the context that the child was shoved to the ground to avoid an
oncoming bus.
B.
PROPERTY PRESUMPTIONS.
1.
MARITAL PROPERTY PRESUMPTION. It is rebuttably presumed
that all property obtained subsequent to the marriage and prior to
the valuation date, is marital property regardless of whether title is
held individually or in a form of co-ownership, such as joint tenancy,
tenancy in common, tenancy by the entirety or community property.
Minn. Stat. § 518.003, subd. 3b; Gottsacker v. Gottsacker, 664
N.W.2d 848, 853 (Minn. 2003). The marital property presumption
can be overcome by proving the property is nonmarital property,
meaning property acquired before, during or after the existence of
the marriage, which is
a.
acquired as a gift, bequest, devise or inheritance made by a
third party to one but not to the other spouse;
b.
acquired before the marriage;
c.
acquired in exchange for or is the increase in value of
property described in clauses (a), (b), (d), and (e);
d.
acquired by a spouse after the valuation date; or
e.
excluded by a valid antenuptial contract.
Minn. Stat. § 518.003, subd. 3b. The party seeking to rebut the
marital property presumption must prove their claim by a
preponderance of the evidence. Crosby v. Crosby, 587 N.W.2d
292, 296 (Minn. App. 1998) rev. denied (Minn. Feb. 18, 1999).
The party seeking to prove property is marital should present that
the property was acquired during the marriage. If acquired by gift,
bequest, devise or in heritance, the party should evidence that it
was made to both parties. For example getting a statement from
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the donor or evidence demonstrating the donor’s intent is very
valuable in trying to prove this claim.
One of the most commonly litigated portions of nonmarital law is
the increase in value on the property. The party seeking to benefit
from the marital property presumption must initially show that the
increase in value occurred during the marriage. The party seeking
to rebut the marital property presumption must show that the
increase was not the result of “marital effort,” but rather was due to
market forces, inflation or a third party. Baker v. Baker, 753
N.W.2d 644, 651 (Minn. 2008)(the single test for whether
appreciation is marital or nonmarital is the financial or nonfinancial
efforts of the spouse to generate the appreciation). The party
seeking to benefit from the presumption can then prove that the
increase is income, which is always marital property on the asset or
the result of “marital effort.” Nardini v. Nardini, 414 N.W.2d 184,
193 (Minn. 1987); Swick v. Swick, 467 N.W.2d 328, 331 (Minn.
App. 1991)(income is always marital property, even if from a
nonmarital source) rev. denied (Minn. May 16, 1991). But, what if
the income is clearly from a nonmarital asset and the income is not
taxable. If the estate is not paying any tax, why should the income
be deemed marital property? If there is no marital contribution, why
should the income be marital property?
The rebuttal to the marital property presumption relating to property
acquired after the valuation date frequently comes into play when
trying to prove the marital and nonmarital character of defined
benefit retirement plans and stock options. Janssen v. Janssen,
331 N.W.2d 752, 756 (1983)(relating to nonvested defined benefit
plans); Salstrom v. Salstrom, 404 N.W.2d 848, 851-52 (Minn. App.
1987).
With respect to Antenuptial Agreements, the party seeking to rebut
the presumption must show there is a valid and enforceable
Antenuptial Agreement. See Minn. Stat. § 519.11; McKee-Johnson
v. Johnson, 444 N.W.2d 259, 266-67 (Minn. 1989)(discussing
procedural and substantive fairness analysis). The party seeking to
prove the property is marital must show that the Antenuptial
Agreement is invalid and not enforceable.
2.
CONCLUSIVE PRESUMPTION ON CONTRIBUTION. There is a
conclusive presumption that both parties made a substantial
contribution to the acquisition of income and property while they
were living together as husband and wife. Minn. Stat. § 518.58,
subd. 1.
This presumption is one of the few conclusive
presumptions in family law.
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To benefit from this presumption, the practitioner must show that
the property was obtained while the parties were living together as
husband and wife. The party opposing this presumption cannot
overcome the conclusive presumption, but that does not mean that
the assets acquired will necessarily always be divided equally in
value. The presumption only states that the parties may a
substantial contribution to the acquisition, not that they are to be
divided equally in value. The party seeking to overcome this
conclusive presumption can present evidence on the other factors
in Minn. Stat. § 518.58, subd. 1 to show that a just and equitable
division of the marital assets may not be an equal division of the
assets. These factors include, “the length of the marriage, any prior
marriage of a party, the age, health, station, occupation, amount
and sources of income, vocational skills, employability, estate,
liabilities, needs, opportunity for future acquisition of capital assets
and income of each party.” The law also address "the contribution
of each in the acquisition, preservation, depreciation or appreciation
in the amount or value of the marital property, as well as the
contribution of a spouse as a homemaker." Minn. Stat. § 518.58,
subd. 1. Note that the conclusive presumption is limited to the
acquisition of assets.
Also, because property is to divided
equitably, the statute does not require that the conclusive
presumption means that the property acquired is to be divided
equally. The practitioner should look at these factors closely to
analyze how they may apply to the facts of their case. If applicable,
the factors may result in a disproportionate division of the assets.
3.
NO PRESUMPTION FOR EQUAL DIVISION. There is often a
misperception in family law that there is a presumption that marital
property will be divided equally.
There is no presumption,
conclusive or rebuttable, that marital property should be divided
equally. White v. White, 521 N.W.2d 874, 878 (Minn. App.
1994)(marital property to be divided equitably, not equally). The
Court is to look at many factors to determine a just and equitable
division of marital property, which may not be an equal division.
See Minn. Stat. § 518.58, subd. 1. The practitioner should look at
these various factors when seeking to overcome the conclusive
presumption that each party made a substantial contribution to the
acquisition of marital property while they were living together.
Substantial contribution does not mean that the division of property
is required to be equal.
The conclusive presumption of a
substantial contribution to the acquisition of assets does not say
and require an equal division of those assets. There are fact
situations which would support an unequal division as still being
equitable.
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C.
SPOUSAL MAINTENANCE PRESUMPTIONS.
1.
PRESUMPTION IN FAVOR OF PERMANENT SPOUSAL
MAINTENANCE. Although not stated as a presumption, there is a
rebuttable presumption in favor of permanent spousal maintenance
over temporary maintenance when a party has shown that there is
some uncertainty about his or her ability to make the adjustments
necessary to be self-supporting. There is no bright line rule on
when maintenance should be permanent as opposed to temporary.
But, there are a number of cases that have addressed when
permanent as opposed to temporary maintenance should be
awarded. See Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn.
1987)(older, dependent spouse who had been out of the work force
after long term marriage entitled to permanent spousal
maintenance); Gales v. Gales, 553 N.W.2d 416, 422 (Minn.
1996)(32 year old spouse of 11 year marriage should be awarded
temporary spousal maintenance); Dobrin v. Dobrin, 569 N.W.2d
199, 203 (Minn. 1997)(two and one-half year marriage did not
justify permanent award); Hall v. Hall, 417 N.W.2d 300, 301 (Minn.
App. 1998)(39 year old wife of 18 year marriage, who worked part
time during the marriage awarded temporary maintenance); Aaker
v. Aaker, 447 N.W.2d 607, 609-10 (Minn. App. 1989)(39 year old
wife of 14 year marriage who had bachelor’s degree and employed
part time during marriage awarded temporary maintenance) rev.
denied (Minn. Jan. 12, 1990); Maiers v. Maiers, 775 N.W.2d 666,
667 (Minn. App. 2009)(wife awarded temporary maintenance after
17 year marriage where she had a college education, was a
licensed teacher and could obtain additional vocational training);
The practitioner seeking to benefit from this law should present
evidence on the spousal maintenance factors, indicating that a
spouse cannot become self supporting based on the marital
standard of living. In many cases where the marriage is not of long
duration a party will not receive the standard of living despite the
permanent spousal maintenance presumption in the statute.
Clearly, there are many factors which would and do influence
Courts not to award permanent spousal maintenance.
For
example, a party in a short term marriage who has received
substantial standard of living benefits because the other spouse is
wealthy, is not likely to receive permanent spousal maintenance.
The permanent spousal maintenance statement in the statute is
generally not going to be applied where the facts do not warrant
that result to be determined as equitable.
The party opposing the permanent award should show that the
spouse is capable of becoming employed and if possible self
supporting based on age, vocational skills or training. In many
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cases a standard practice is to not award permanent payments
where there is a short term marriage or there is a lack of other
factors that compel that permanent maintenance be awarded
because of equitable reasons. Thus, the presumption is frequently
ignored or made rebuttable by the mediators, the Court system and
attorneys negotiating settlement. It is widely understood that
despite the standard that a party must be able to meet their
standard of living, it is not applied in the vast majority of cases.
2.
IV.
NO PRESUMPTION A SPOUSE CAN BE EMPLOYED. There is
no presumption that a spouse can be employed for spousal
maintenance purposes. Minn. Stat. § 518.552, subd. 1 and 2. But,
the Court is to look at the ability of the spouse seeking spousal
maintenance to be self supporting given the marital standard of
living. Id.; Passolt v. Passolt, 804 N.W.2d 18, 22 (Minn. App. 2011).
There is no requirement that the potential payor spouse show that
the party requesting spousal maintenance is underemployed in
“bad faith.” Id. Compare this with the standard for imputing income
to a spousal maintenance obligor, which requires the practitioner to
show that the obligor is underemployed in “bad faith.” Melius v.
Melius, 765 N.W.2d 411, 415 (Minn. App. 2009).
CHILD SUPPORT PRESUMPTIONS.
1.
PRESUMPTION THAT STATUTORY GUIDELINES APPLIED.
There is a rebuttable presumption that the statutory guidelines will
be used to calculate child support. Minn. Stat. § 518A.35, subd. 1;
Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001)(applying the
rebuttable presumption to the prior child support guidelines).
The parent seeking to have the rebuttable presumption applied
should provide evidence to calculate child support under the
guidelines. Minn. Stat. § 518A.34. The parent seeking to rebut the
statutory guidelines must present evidence that there should be a
deviation to the child support guidelines. Minn. Stat. § 518A.43.
The deviation factors include evidence regarding:
a.
all earnings, income, circumstances, and resources of each
parent, including real and personal property, but excluding
income from excess employment of the obligor or oblige that
meets the criteria of section 518A.29, paragraph (b);
b.
the extraordinary financial needs and resources, physical
and emotional condition, and educational needs of the child
to be supported;
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c.
the standard of living the child would enjoy if the parents
were currently living together, but recognizing that the
parents now have separate house-holds;
d.
whether the child lives in a foreign country for more than one
year that has a substantially higher or lower cost of living
than this country;
e.
which parent receives the income taxation dependency
exemption and the financial benefit the parent receives from
it;
f.
the parents’ debts as provided in subdivision 2; and
g.
the obligor’s total payments for court-ordered child support
exceeds the limitations set forth in section 571.922.
Minn. Stat. § 518A.43, subd. 1; see McNulty v. McNulty, 495
N.W.2d 471 (Minn. App. 1993)(upward deviation granted to sustain
child’s accustomed standard of living); Desrosier v. Desrosier, 551
N.W.2d 507 (Minn. App. 1996)(the right of children to enjoy the
standard of living they would have enjoyed had their parents’
marriage not dissolved transcends the public policy favoring the
setting of a specific monthly child support amount); see also State
v. Hall, 418 N.W.2d 187, 188, 190 (Minn. App. 1988)(disparity in
income by itself is not a justification for a deviation from
presumptive child support guidelines, it must relate back to the
needs of the child). If seeking an upward deviation to the
presumptive child support guidelines, the practitioner should focus
on the children’s needs that differentiate them from typical children
(i.e. private school tuition, special needs, expensive extra-curricular
costs and the like).
2.
PRESUMPTION OF FULL TIME EMPLOYMENT. There is a
rebuttable presumption that a parent can be employed “full time”
working “40 hours of work in a week” for purposes of calculating
child support. Minn. Stat. § 518A.32, subd. 1; Welsch v. Welsch,
775 N.W.2d 364, 367-68 (Minn. App. 2009)(rebuttable presumption
that parents can work full time is consistent with state’s compelling
interest in assuring that parents provide the primary support for
their children). A practitioner seeking to have this presumption
applied must show that the other parent is not employed on a fulltime basis, but could and should be employed full-time.
The parent seeking to rebut the presumption of full time
employment of 40 hours per week can rebut the presumption in a
number of ways as follows:
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3.
a.
prove that the party’s industry, trade or profession does not
use a normal work week of 40 hours, Minn. Stat. § 518A.32,
subd. 1;
b.
show that the unemployment or underemployment is
temporary and will lead to an increase in income, Minn. Stat.
§ 518A.32, subd. 3; Putz v. Putz, 645 N.W.2d 645 N.W.2d
343 (Minn. 2002)(reviewing this basis as it applies to
education);
c.
submit
evidence
that
the
unemployment
or
underemployment is a bona fide career change that
outweighs the adverse effect of that parent’s diminished
income on the child, Minn. Stat. § 518A.32, subd. 3;
d.
show that the unemployment or underemployment is the
result of incarceration or physical or mental incapacity, Minn.
Stat. § 518A.32, subd. 3;
e.
establish that the parent is a caretaker of the child in
question, who stays home to care for the child, Minn. Stat.
§ 518A.32, subd. 51;
f.
prove that the parent is a recipient of temporary assistance
to a needy family, Minn. Stat. § 518A.32, subd. 4; or
g.
show that a self employed individual’s unemployment or
underemployment is the result of “economic conditions,”
Minn. Stat. § 518A.32, subd. 6.
CHILD SUPPORT MODIFICATION PRESUMPTIONS. There are a
number of presumptions that apply to child support modification
proceedings.
a.
PRESUMPTION
OF
SUBSTANTIAL
CHANGE
IN
CIRCUMSTANCES. It is conclusively presumed there has
been a substantial change of circumstances to modify child
support if: (1) the child support guidelines result in an order
$75 and 20% more or less than the existing amount; (2) the
medical support provisions are not enforceable by the public
agency; (3) health coverage is not available as ordered; (4)
the support is in the form of a percentage instead of a
specific dollar amount; (5) the gross income of the obligor or
oblige is 20% more or less by no fault or choice of the party
than when child support was set; or (6) there was a deviation
1
There are a number of factors that need to be established for this to be applied. The practitioner should
review the statute carefully to address them.
11
of the child support due to the child living in a foreign country
and the child no longer lives in a foreign country. Minn. Stat.
§ 518A.39, subd. 2(b); Rose v. Rose, 765 N.W.2d 142
(Minn. App. 2009). When any of the above are proven, the
Court must find there has been a substantial change in
circumstances sufficient to modify child support.
The
opposing party cannot rebut the presumption of a substantial
change if one of the factors are met.
b.
B.
PRESUMPTION
OF
UNREASONABLENESS
AND
UNFAIRNESS. If any of the above factors are met, the
Court must also apply a rebuttable presumption that the child
support is “unreasonable and unfair.” Minn. Stat. § 518A.39,
subd. 2(b). Notably, the presumption is rebuttable. Thus, a
party can overcome this presumption by showing that the
child support is not unreasonable and unfair despite one of
the above facts occurring. For example, if the obligor’s
income reduces by more than 20%, but the reduction takes
the obligor’s income from $10 million per year to $8 million
per year it is unlikely the guidelines child support amount
would be found to be “unreasonable and unfair.” Similarly, if
the obligee’s income reduces by more than 20%, but the
oblige was already receiving a significant upward deviation
to the child support, it is unlikely the child support would be
found unreasonable and unfair.
ANTENUPTIAL/POSTNUPTIAL AGREEMENT PRESUMPTIONS.
1.
ANTENUPTIAL AGREEMENT PRESUMED ENFORCEABLE IF
PROCEDURAL FAIRNESS REQUIREMENTS MET.
An
antenuptial agreement is presumed to be valued and enforceable if
it is duly acknowledged and attested. Minn. Stat. § 519.11, subd. 5;
In re Meath, C5-02-1905, p. 5 (Minn. App. 2003)(unpublished). The
presumption of enforceability can be overcome by showing that the
procedural fairness requirements in Minn. Stat. § 519.11, subd. 1
have not been met or that the agreement is not substantively fair.
McKee-Johnson v. Johnson, 444, N.W.2d 259 (Minn. 1989). It is
presumed there is fraud in an antenuptial agreement when there is
not adequate consideration.
Id.
The presumption can be
overcome by showing the party knew the extent, character and
value of the property and the nature and extent of the parties’ rights
under the agreement. Estate of Serbus v. Serbus, 324 N.W.2d
381, 385 (Minn. 1982). Thus, if a party knows what they are giving
away and voluntarily agrees to do it, the presumption can be
overcome.
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2.
V.
POSTNUPTIAL AGREEMENT PRESUMED UNENFORCEABLE IF
PROCEEDING COMMENCED IN 2 YEARS.
A postnuptial
agreement is “presumed to be unenforceable if either party
commences an action for a legal separation or dissolution within
two years of the date of it execution unless the spouse seeking to
enforce the postnuptial contract or settlement can establish that the
postnuptial contract or settlement is fair and equitable.” Minn. Stat.
§ 519.11, subd. 1a(d). A party seeking to benefit from the
presumption need only show that the legal proceeding was
commenced within two years of the execution of the postnuptial
agreement. The party seeking to overcome the presumption must
show that the postnuptial agreement is “fair and equitable.” The
terms “fair and equitable” are not defined by the statute and there
are no cases that have defined it. Thus, the evidence necessary to
overcome this presumption is not defined in case law nor in the
statute. But, it would be reasonable to assume that if a party can
prove that the postnuptial agreement is substantively fair, that it
would meet the requirements of being “fair and equitable” and the
postnuptial agreement should be supportable. In drafting such
agreements the practitioner must error on the side of generosity to
avoid the presumption being equitable and making the postnuptial
agreement unenforceable.
CONCLUSION.
This written material addresses only some of the presumptions in family law
cases. The material emphasizes the wide discretion judicial officers have in
applying rebuttable presumptions and irrebuttable presumptions to family law
cases. Courts of equity determine how the presumptions are treated in reaching
decisions in family law cases. Our material has not covered all of the
presumptions, for example the presumptions in paternity cases are not discussed
in this material. Practitioners should review applicable statutory and case law to
determine if there are presumptions that will be applied and to attempt to
ascertain what would be considered to be an equitable resolution of the issues.
The facts of each case must be known and utilized to assess the impact of
presumptions on that case.
When presented with a presumption, the family lawyer should first determine
whether the presumption favors or hurts the relief their client would like. If the
presumption favors your client then develop evidence to support the presumption
being applied. Do not merely rely on the fact that there is a presumption. You
will still need to prove that application of the presumption is appropriate, even
where there is a conclusive presumption, it is vitally important for the practitioner
to present evidence which will ensure that the Judge will apply the conclusive
presumption.
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Conversely, if the presumption does not favor the relief that your client wants,
come up with facts and arguments to rebut the presumption. Do not simply tell
your client that they are not entitled to the relief they want because of the
presumption.
Judicial officers in family law cases have significant discretion to fashion relief
that they believe is in the best interests of children and the parties. That may
result in the application of a presumption, but it also may not. Make sure to have
your evidence ready regardless of which side of the presumption you are on.
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