In this episode, Barry Rosenzweig explores the subject of family law with Jolene D. Vicchiollo of Baker Vicchiollo Law Firm. This is episode one of three episodes on this subject.
Barry Rosenzweig can be reached at [email protected] and Jolene D. Vicchiollo can be reached at [email protected].
Divorce custody, paternity alimony. These are all emotionally charged and complicated concepts that arise in family law, which is the subject of today's show part one of three episodes.
Welcome to the Barry law legal podcast. Barry Rosenzweig has been an attorney for over 25 years and is nationally known as a visionary in his profession. In each episode, attorney Barry Rosenzweig, interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. So, get ready or an educational and exciting episode. Now here's your host, Barry Rosenzweig.
Barry Rosenzweig: We're in the studio today with Jolene D Vicchiollo, and we're going to be talking about family law. I've known Joe for quite a long time, and I want her to tell me a little bit about herself.
Jolene Vicchiollo: Thanks, Barry. I've been practicing family law exclusively for about 20 years. I'm in the metropolitan area. Our offices are in [01:04 inaudible], although we do the 11 County Metro area also out-state, I’ve been recently in Olmstead County. I've been in Duluth, just all over, but the biggest part of my practice is in the Metro area.
Barry Rosenzweig: And you cover all areas of family law?
Jolene Vicchiollo: Yes, I do.
Barry Rosenzweig: Let's just start off by you telling me under the family law umbrella, what are some of the things that would be involved or that you'd be working on under that family law umbrella?
Jolene Vicchiollo: Sure. I think that most people probably think of divorce right away when they think of family law, but actually there are a lot other areas of family law as part of the, as you said, under the umbrella, there's prenuptial agreements and then postnuptial agreements, there's divorce, there's custody and parenting time. Third party custody, when someone else comes into a family and receives custody of a child or children, a grandparent's rights and paternity. Paternity is where the parties have children together, a child together. But they're not married and that's a separate and apart from custody and parenting time and divorce and it looks differently and there are different statutes related to it. And there's also order for protections, which are as you can imagine, pretty intense and stressful. And then after there's court orders, there's something that we call post decree matters. People sometimes run into bumps two years after the divorce or three years, and then they come back, and they'll hire our firm to work on those types of issues.
Barry Rosenzweig: Well, it seems like there's a lot of different parts to that that I never realized. Tell me a little bit about when somebody comes in your office and you just say, I want to get a divorce. First of all, how do they decide what attorney they should hire, you know, qualifications and that sort of thing.
Jolene Vicchiollo: Right. A good deal of my work is from personal referrals. Clients will refer clients or excuse me, potential client. Now with the onset of online advertising, we get clients that way as well that they'll come in the door. But when they come in, they really, there's a whole gamut. Sometimes a person just wants to know, they're not sure that they want to move forward and I’ll stick exclusively right now, just to divorce is if that's the issue that is at hand and they'll want to know what will it look like? What parts are involved? Can I do this? Or, you know, they're mainly concerned if they have children about you know, if they move forward with a divorce, how will a court handle deciding where a kid lives, that sort of thing. And then if they don't have kids, the financial issues they're often worried about, well, if we have one household now but now, they're going to be two, how will that be supported? So, they'll come in the door and they'll say, okay, can you give me general information about what it looks like? Other people will come in and they've decided they know, and they just want to move forward. They're ready. And there's something that's called a divorce readiness scale. And that's when two parties, you know, the husband and wife, or the wife and wife, or husband and husband will, one person has been thinking about the divorce for a while and wants to move forward. You know, couldn't be divorced fast enough. Well, the other spouse might be caught off guard or has been thinking about it. So, we'll often assess where are they on the divorce readiness scale. Sometimes people are one, some people are minus two, they don't want it at all. And then others are tens where they've, as I just said, they've been thinking about it and planning it for a while. And so, you know, that's another thing that gets assessed when they come in, or we kind of talk about and recognizing where each spouse is on that divorce readiness scale. And then I’ll talk about the three parts of a divorce. The first part is what you typically think about is custody and parenting time and custody and parenting time are different. So custody, there is physical custody, obviously, you know, where the children, who's, the physical custodian, and then there's legal custody and legal custody has to do with three areas of the law, or excuse me, decision-making, it has to do with a child's educational background where they're going to go to school. Well, you'll often see you know, one parent wants the child to go to a private school, the other, a public or what school district, they live in two different school districts, where are the kids going to go? That sort of thing. And the second thing is medical decision making for legal study. The most common we see as if you have teens or preteens, and one parent wants the child to go to counseling. Well, if you have what we call joint legal custody, both parents have to agree to it. So oftentimes parents will be at loggerheads because one thinks the child's fine, the other wants counseling. And so that's another part of the legal custody. And then the third part is a religious upbringing. How are, what faith, if any, will your child be raised in? We don't see a lot of issues with religious upbringing. The two biggest issues are educational and then medical care. So that's the joint legal, or excuse me, legal and physical custody. Underneath that is parenting time. And that really is, what's most important outside of legal custody, because that's the daily care and control of where a child or children will be.
Barry Rosenzweig: Is that sort of like the, every other weekend type of thing you hear about.
Jolene Vicchiollo: Right. Exactly. So, the parenting schedule drives child support. It drives where the kids will be, in joint physical custody arrangements you often see what we call a five, two, two, five schedule, which is Monday and Tuesday with one parent Wednesday and Thursday with the next, and then they alternate weekends. And so that's the parenting time schedule, that doesn't have anything to do with custody, but just where the kids are.
Barry Rosenzweig: Well, let me ask you this. How does that typically affect the kids when they're moving, particularly if they're in different school districts, different cities, you know, within the...
Jolene Vicchiollo: Right. I've been, as I said earlier, I’ve been practicing about 20 years. And when you have parents who are younger, who are divorcing, there is, I’ve seen a real change in both mom and dad being hands on with the kids. And so, they don't want to give up any time. So, they often times agree to a schedule like this five, two, two, five. I have to say over the years, I think it's become more problematic. And I’ll often say to my clients, would you want that schedule? Would you want to live in one house on Monday and Tuesday, then a different house on Wednesday and Thursday, and then alternate weekends. And just to have them kind of thinking about it, because you know, with your kids, that's the thing that's closest to your heart. And you want to make sure that they're okay. But I think sometimes parents don't realize what that might look like for their child.
Barry Rosenzweig: With regards to that, I knew a situation where the kids lived in the one home and the parents would shift homes themselves. Have you ever seen that?
Jolene Vicchiollo: It is called Nesting. Yup. And it's pretty common. It was popular Oh, I don't know, 5, 10 years ago. It's kind of losing a little bit of its you know, the glamour of it, so to speak and that's because mental health professionals are not all, but some are saying that they don't think that's best for a kid. And I think the reason is it's confusing. You know, if parents are divorcing, right, mom, you know, one parent, excuse me, is going to have a home. And the other parent is as well. But when you have the kids in one home and the parents shift in and out, it can be confusing for a child. Plus, there are big boundary issues, right. You're divorced, but here comes one parent back in the home and then, you know, it's so as I said, it used to be a lot more popular, but I think that they're finding it's not, it's not the best case. We see it most frequently now at the beginning of a divorce when people aren't sure am, I going to stay in the house? Am I going to move someplace else? Am I going to rent something? So, until those details, the final decisions as for the divorce are made, that's when we see it.
Barry Rosenzweig: Maybe do you find this more often nowadays with where people are having difficulty financially, particularly going through a divorce where both spouses stay in the home together but live in different levels or different rooms.
Jolene Vicchiollo: That's really common. After 2008, the uptick and the people stayed in the house together really was, I mean, they just couldn't afford it because their houses were now under water. There was no equity. They couldn't afford two places. Just with that, that severe economic downturn so that we saw a lot, people will, if it's an amiable divorce, people will often do that because they want to save money and they want to wait until the very end and, you know, not waste money on renting another place or buying another home til they know what they're doing. But I think now that you see recommendations that it's better to separate than to stay in the same home, because if there's tension between the parents, it trickles down to the kids. But I have a lot of cases where one person's in the basement living and then the other person is on the main floor. But that doesn't last a long time. The tension just, it just becomes untenable.
Barry Rosenzweig: Let me Shift gears just a little bit. What, tell me a little bit about what the different reasons people do get divorced.
Jolene Vicchiollo: Well, I think, you know, as you and I were talking earlier, I think most people think it's because of infidelity. And I just don't see that at all. The two most common reasons that I see people divorcing are because of mental health issues. Often untreated. Someone has a personality disorder and, or domestic abuse. And then chemical dependency. Those are the main reasons. Sometimes you see it for financial, like they're so far apart on financial or you know, one person has a, a true spending problem and, you know, $70,000 $80,000 in credit card debt. And the other person said, I can't take it anymore. I just want to get out. But that might even swing back around to mental health issues. I think that's the biggest, that is the biggest reason that I see people deciding to move forward because they'll come into my office and they'll say, I just can't, I just can't handle them or I can't take it.
Barry Rosenzweig: I think that's surprising probably to most people, because I think it's surprising to me. Maybe not the dependency issue so much, because I can see that, but sometimes the mental health issues maybe it's a little harder to see. You know, and their personality starts conflicting between the two, you know, between the two of them and they don't see what it is necessarily or it's undiagnosed.
Jolene Vicchiollo: And I think that's really common. And I know it's a popular at our, you know, with our climate right now to use the word narcissist to say that you know, someone's a narcissist, but many of my cases, you see a true narcissist is someone who lacks the ability to take responsibility for his or her own behavior, who and that other spouse who's always being blamed for things just gets to the point where they get fed up. And they say, you know this is it, I can't put up with that anymore. Or this always surprises me is within that same personality disorder that how demeaning the narcissist is to the other spouse. I had one case where the husband did not want a divorce. In fact, he delayed hiring an attorney until right before trial. And then I think he panicked because he knew it was going forward, but he would cut out letters and put them by my side of my client's bed. I love you. And you know that sort of thing, but then he would treat her horribly. He would say things you're nothing without me. When I met you, you said, junky car, you know, like all these awful things that I would think, Oh, that's going to win her back. If you have the personality disorder, I think the person who struggles that doesn't always recognize the behavior and the effect on the other spouse.
Barry Rosenzweig: What about same sex marriages? Talk a little bit about that in Minnesota.
Jolene Vicchiollo: Right. Well, as you know, that Minnesota law allows people of the same sex to marry and we've had done a handful of same-sex divorces, not a lot just because the statute was just put into place just several years ago. So, it isn't as if there were 20-year marriages. We would see that in some States, Iowa had same sex marriage long before Minnesota did. So, people move here, and they're legally married in Iowa, Minnesota recognizes that. So, we would have some of those. It really, it doesn't change too much. What I see as there's more what we call premarital tracing of assets to, you know, to look at, just because, as I said that hasn't been our law in Minnesota for very long. But you're still, you know, figuring out the same thing, the parenting time scheduled between the spouses, the division of assets is there any spousal support?
Barry Rosenzweig: it's really no different.
Jolene Vicchiollo: No, it's no different.
Barry Rosenzweig: Another question that common law marriage, I think there's a misconception in this state as to common law marriage and, you know, I’ve had people ask me as an attorney, even though I don't practice in family law I’ve lived with my girlfriend or my boyfriend for X amount of years. So, we're actually married.
Jolene Vicchiollo: No, they're not actually, they're not actually married. So, Minnesota abolished common law marriage. And I think most people think if you live together consistently for seven years, then you are married by common law. But Minnesota doesn't recognize that. So, as I said, it was abolished in the, I believe the early 1940s, however, if another state recognizes common law marriage and that couple moves to Minnesota and they're married under another state's common law, then Minnesota will recognize that.
Barry Rosenzweig: It is interesting.
Jolene Vicchiollo: Yeah, it's the same, you know, it's the same thing as the same sex marriage before Minnesota, right? That those marriages are recognized.
Barry Rosenzweig: If a couple is living together or boyfriend, girlfriend not married, and the woman gets pregnant and has a child, how do you determine, you know, paternity for the male, for example, I mean, obviously, you know female is obvious. But as far as the father goes, how do you determine that? And you know, also how does it affect if they're on the birth certificate or not in the birth certificate, sign or don't sign on it.
Jolene Vicchiollo: Right. Sometimes it's really clear, you know, mom will say there, I’ve had no other partners. I know a hundred percent that this is dad. And so, in Minnesota, if you sign what's called a recognition of parentage. And if you're not married in Minnesota and have a child, at the hospital, a form will be brought to you called a recognition of parentage. And the both parents are signing it saying, we acknowledge that this is mom, and this is dad. And under Minnesota law, dad is then what we call adjudicated the father. It doesn't mean that he has any parenting time, rights, or custody rights. It just means that he is the legal father. So that is really common. If you don't have, if you're not sure, then you can ask for genetic testing. We had a case recently where mom and dad were both married to other people. Mom knew who the dad was and dad, you know, biological dad didn't want to, you know, fess up to it. So, we had to bring an action and ask the court to order him, to undergo genetic testing, to show that he was dead. And he was.
Barry Rosenzweig: Is that common for a judge to almost always okay that?
Jolene Vicchiollo: Yes. I haven't, I don't ever, I can't think of a case where genetic testing was requested and it was denied. They want to figure out who the father is, but we don't see that very often. Most people know, you know, they know.
Barry Rosenzweig: What about where, you know, a situation where the boyfriend or husband, like you talked about you know, assumes they're the father and the mother doesn't want to say or doesn't know for sure. How does that conflict with maybe who the real father is and who the, you know, deemed father is the person who basically, you know, the boyfriend currently who says, it's my son.
Jolene Vicchiollo: Right. Well, you have to be careful cause there's a timeframe to say that you're not dead. And oftentimes it will lapse, right. That time period, to challenge, to say whether your dad or not. So, if a child is born, if the parties are married and a child is born, it is deemed that husband is the father. So that's just, and so if he's not, he has to bring an action challenging and saying, I'm not dad. I want genetic testing, that sort of thing. Usually what happens is that that three-year, time period lapses, and it's too late for dad to challenge it. So, then he'll be deemed the legal father, even if he's not the biological father. And some, a lot of times I’ve seen in cases that the father, the legal father, not the biological father doesn't care because he's been living with the kid, loves the kid is, you know, is seeing that child as his own, even though he's not biological, it's kind of akin to adoption, right. When parents adopt a child, right. They're not the biological parents, but their mom and dad, and they're the legal parents, that sort of thing.
Barry Rosenzweig: Child support situation where woman and girlfriend, boyfriend presumably are in a relationship, 19 years later, 20 years later, the boyfriend finds out that the daughter or son is his, because they've talked about it after the fact, or maybe they knew about it earlier. But maybe the mother is re is remarried or is married. And what happens with a child support situation if it's, you know, what age first of all, is child support paid. And then, you know, what happens if it's past.
Jolene Vicchiollo: So, if a child support, so there's an, and I’ll leave the divorce part. I'll just kind of focus on the paternity part of it. So, a court has the ability in any kind of custody action to order child support. And so, if the parents aren't married and we know that dad is the legal father, if he signed a recognition of parentage, that recognition of parentage gives the County the authority to seek child support from dad. If dad never signed a recognition of parentage, then the County has to go through you know, that whole genetic testing and so on and more hoops jump through. So, what the law says is that as a parent always has an obligation to support a child. So right away now let's say two years have gone by, the couple is living together. Everything is just peachy, right? And then the couple breaks up and they're living in separate homes. If the mom wants to seek child support from dad and they have not been married under Minnesota law, she can go back two years. So, that dad could be on the hook for child support for the two previous years. So, let's say the kid is six, right. And mom, and they break up, mom, can't go back six years, but she can go back two years and have ask the court to order child support.
Barry Rosenzweig: And what's the age that you have to typically pay child support?
Jolene Vicchiollo: Until the child turns 18 or is emancipated. Which we think of graduation from high school, whichever is later.
Barry Rosenzweig: Okay. So, graduation high school actually counts.
Jolene Vicchiollo: Yeah, Exactly. So, if a kid turns 18 in October of his or her senior year, the obligor, the person paying the child support pays until that child graduates from high school.
Barry Rosenzweig: What about a situation where, you see where a divorce situation or an unmarried situation that the mother, for example, who will not get remarried because of spousal maintenance or potentially, I don't know, child support, I don't know.
Jolene Vicchiollo: So, child support is not affected by remarriage and the new spouse’s income. So oftentimes people will worry, well, if I get remarried and my spouse will, they now look at her income or his income for figuring out my child support obligation and they don't. Child support is based on the gross income of each parent. And you also take into factor, what are the cost of the health insurance premiums and dental premiums, and who's paying them. And if there's childcare, who's paying that. And we have a calculator from DHS and you just plug in the numbers and it kicks out a number what's your child support obligation is.
Barry Rosenzweig: So, it's pretty straightforward.
Jolene Vicchiollo: Very straightforward. And in Minnesota, there was an overhaul of the child support in August of 2018, where we used to be in what we called percentages of parenting time. If you had your child 0% to 10% of overnights, 10% to 45%. And then the third category was 45.1%. And then the calculator kicked it out. Now the law changed in August, and we're still kind of handling this because it's fairly recent where you literally count every single overnight. So, you have to plug into the calculator out of 365 nights how many does one parent have and how many does the other? So that's kind of shifted the law. So, as I said, that's because it's such recent law where we're really getting more cases with that and seeing that a little bit more. So not affected at all by remarriage. Child support is not. Gross Income of the parents [23:50 inaudible].
Barry Rosenzweig: Spousal support is different, right?
Jolene Vicchiollo: Absolutely different. So, in spousal maintenance, that is, you know, some people think of it as alimony. And there are a variety of statutory factors of whether, and that's in a marriage that is not in a paternity matter. So, it is only in a divorce situation. So when you're looking at spousal maintenance, they're statutory factors, a court has to look at in deciding how, you know, how much spousal maintenance who's going to get it, you know, that sort of thing. So, things such as the length of the marriage, the standard of living during the marriage. Did one party work to accumulate assets. What's the educational background of the person seeking spousal maintenance? What is earning capacity and I’ve done probably over a hundred trials over my career. And by far I’ve done the most is spousal maintenance. Because there's not a clear rule. And even from judge to judge, one, judge might be more pro spousal maintenance. And one less, even though we have our statutes, because they can be subjective, you might say, well, this person needs four years to get back into the workforce and go back to school and get training to be updated. And one judge might give that person more time and give spousal, okay, I’ll award spousal for four years until that person completes college and can get a job. And then we'll look at it again. Other people will say, Nope, the law says both parties are expected to work 40 hours a week. Okay. You know, person asking for spousal, go out and get a job now, you know, there's plenty of work. There's no reason. So, you have to mitigate what you're asking for in spousal maintenance, by working before, you know, you can say this is the final amount, but there is an expectation. And that's within the last five years, there are a couple of cases that came out [25:44 inaudible] and Powell were cases that said look, obligate, you know, person getting the spousal you know, we expect you to contribute to your expenses as well. And for some people, it might be part time because that's all they have the capacity. It could be you know, a job where they're earning $24,000 $25,000 a year, or it could be where they're, you know, one parent was out of the workforce and it's going to take a little bit of retraining and they're going to be at a hundred grand. And you know, so those are all different factors that is affected. If you remarry, because if you under Minnesota law, if you remarry your spousal maintenance ends.
Barry Rosenzweig: What happens with going back to the budget, what happens with children who are in private school? Is that a big issue, as far as, you know, if they have to keep paying for it or one party does, or the other party, and maybe one party never agreed that it was a good idea to begin with. And they want to kind of say public schools okay. I mean, because it can be expensive.
Jolene Vicchiollo: Right. That's frequently a disputed issue and you have to have a judge decide. So I had a judge once this is years ago in a Nova County where the kids had gone to private school, they were like fifth graders, six, you know, around that age, they had a couple of kids. And so, we put in our client's budget, the cost of tuition, because to me, they had decided together that was an expense. And dad said, Nope, I don't want to have to pay for it. And the judge said, I'm not going to make him pay for it. But another judge might say, well, look, you decided together. We don't want to upset the Apple cart. We want the kids to maintain stability. So, it really, it's not child support. Because that's different. So, it kind of depends, but we frequently see that disputed.
Barry Rosenzweig: So, join us for our next episode for part two of this three-part episode on family law. Thanks for listening.
This has been the Barry long legal podcast tune in again, as Barry interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. Barry Rosenzweig can be reached at (952) 920-1001 in Minnesota and (480) 227-2203 in Arizona. He can also be reached by email at [email protected] or online at www.barrylaw.com.