Divorce & Life Insurance

Divorce & Life Insurance

Hello, periodically, we like to update our clients with legal news we think may affect them.

​Today I want to address the issue of life insurance on the other parent.  Some times parents or former spouses receiving spousal support, want the support payments to be guaranteed by life insurance.  Meaning, that if the parent or ex-spouse owing you child support or life insurance dies before their  support obligation ends to you-  you will still have the life insurance benefit to fall back on and will not be totally out of luck if the support payor dies prematurely.

Two things to remember, if you are using life insurance that named you as a beneficiary before the divorce, that life insurance must be updated. The spouse obligated to pay you support must execute a new designation and rename you as beneficiary.

Once the divorce is entered, the divorce automatically revokes all beneficiary designations, including you if you were on the policy. This applies to wills and other beneficiary designations.

Secondly, you should have the other parent’s obligation stated in the divorce decree or paternity Order.  Why?  Because if the other parent fails to keep the life insurance and then dies, you would then have a claim against the deceased parent or ex-spouses estate.   Also, if your decree orders the other party to keep life insurance that may overcome a lack of change of beneficiary.

Child Support

I Want To Waive Child Support, Why Did The Judge Say No?

When parents enter into an agreement about their children and child support, the parents are surprised to find that they Court will not let them waive child support. The parents are surprised when the Court says; “no, you may not waive child support” and refuses to order their agreement. The parents believe that the agreement is only between them and does not concern the Court. Not so.

When parents enter into a courtroom and seek judicial approval of an agreement for custody and parenting time, the Judge, is like a third party. The prevailing belief is that if the law requires child support, it needs to be paid.

A parent may not waive his/her right to child support. You may, with Court approval, reserve the child support matter for another date.

If the parents have equal parenting time, but unequal incomes, child support still needs to be paid.

There are occasions when no child support is paid, but those occasions are for a very good reason and with Court approval. A parent may not simply waive receipt or payment of child support, even if both parents want to waive child support.

Overtime & Child Support

Is Overtime Included In Calculating Child Support?

Like so many issues in the law, the answer is- “It depends”. The general rule is that if overtime income is voluntary and not a condition of employment, the overtime income deleted from the support calculation. The answer seems clear-cut and easy enough. The problem is that many workers with over time incomes have worked
overtime for a number of years and the income is actually not an increase or change in their present income.

The child support law asks a number of questions as a guide to Judges looking at overtime issues. Some of the questions are – Did the overtime start after the commencement of the divorce? Is the current excess employment an increase in the past two-year work schedule? Is the excess employment in the nature of a second job? Did the parent change his/her pay structure in order to avoid or reduce a support obligation? Are the excess employment hours voluntary and not a condition of employment? There is not one question but several questions the parent is required to address when asking the Court to disregard overtime income. As with most legal matters, there is no simple answer.

The final question in this issue is usually- “Will a letter from my employer stating the overtime is voluntary be enough to convince the Court the overtime is voluntary?’ It depends, upon the answers to the above questions.

Contempt of Court

Contempt Of Court For Nonpayment Of Child Support

What happens if a person living in Minnesota, who is not a legal resident, has a child support order entered against him or her and does not pay the child support? May the Family Court hold that person in civil contempt and then order as a condition for staying out of jail, that the undocumented worker find a job? How could that be? In the United States, it is illegal for employers to hired undocumented aliens. Is the Court ordering the obligor to do something that is impossible?

The answer is yes in a sense. The Family Court, pursuant to our child support law, may order the obligor to find a job and/or take certain steps every week to find a job so as to stay out of a set jail term.

Recently, in a case before the Minnesota Court of Appeals, just this fact situation was presented to the Court. The Court held the State child support statute and Federal immigration law do not conflict in regards to a parent having to pay child support.

The Court held in a case entitled Zaldivar v Rodriguez, that an undocumented alien, could be held in contempt of Court for not paying child support. The Appellate Court said, that while it is illegal for U.S. employers to hire illegal aliens, it is not a criminal offense for an illegal alien to actually work

Seems confusing. It is confusing. Call us with questions: 952-440-2700.