Age Discrimination Settlement Agreements

Employers who are terminating the employment of older employees often enter into settlement agreements with these employees in which the employer provides benefits to the employee in return for the employee’s release of his or her claims against the employer. The release usually focuses on waiving rights that the employee may otherwise have to bring claims of age discrimination under the Minnesota Human Rights Act or the ADEA. Such releases will usually be upheld if the agreement contains specific language notifying the employee of his or her 15-day right of rescission under the Minnesota Human Rights Act and/or the 7-day right of rescission under the ADEA, as applicable.249

Under the ADEA, the employer must provide the employee with at least 21 days to consider an individual agreement and to consult with legal counsel before signing the agreement, and another seven days to rescind the agreement after having signed it. The employer may revoke its settlement offer during the 21 day review period before the employee accepts. If the waiver is requested in connection with an exit incentive program such as an early retirement program discussed in the previous section, the employer is subject to additional specific notice requirements and the 21 day review period for the employee is increased to 45 days. Be aware that when an employer requests waivers from two or more employees, it may be considered an exit incentive type program under the ADEA and that additional information must be included in the release document in order for it to be enforceable.

Settlement Agreement Enforceability

To be enforceable, an agreement which contains a release of age claims in exchange for benefits must describe in clear and understandable language the time periods for review and rescission, the specific rights that the employee is waiving, advice as to the employee’s right to consult with an attorney and the fact that the agreement does not waive rights of the employee which arise after the agreement is signed.250 These requirements are strictly interpreted and the EEOC from time to time issues regulations and Guidance documents describing its view on the requirements of a knowing and voluntary waiver of ADEA claims. In fact, a release of age discrimination claims that does not satisfy all of the statutory requirements is not an effective waiver of claims and does not prevent the assertion of an ADEA claim even if the employee signs the waiver and release agreement it and keeps the money or other consideration offered in connection with the release of claims.251 Therefore, these (as well as all other) release agreements should be implemented only with the advice of legal counsel.

Also, there must be no hint of coercion or undue pressure on the employee. The amount of consideration (benefits) provided generally depends upon the employee’s salary, the length of employment and other like factors.

249. Minn. Stat. § 363A.31 (2007).
250. Older Workers Benefit Protection Act § 201, 29 U.S.C. § 626(f)(1) (2007).

In my experience, once a court order addressing custody and parenting time is in place, it seems that it is only a matter of time before I get a phone call from a client or a potential client wondering what action he or she can take because the other parent is not complying with the order.  These violations can range from occasionally failing to adhere to pick-up and drop-off times to willfully depriving the other parent of parenting time.  Depending on the nature and severity of the violation(s), there may be several remedies available.

As an initial matter, it should be noted that there is a certain amount of tolerance a court will seemingly expect from each parent with respect to minor and/or unintentional violations of parenting time orders.  For example, a court likely will not be very receptive to a party who clogs up the court docket to voice his or her disapproval of the other parent being five minutes late to pick up the kids.  In other words, minor inconveniences that parents face are simply considered as “coming with the territory” when raising a child with another party.

However, when one parent is repeatedly in violation of the order, and especially when those repeated violations are intentional and cause the other parent to incur additional costs or suffer adverse consequences, there are certain remedies that the non-offending parent can seek. These remedies can attempt to both ensure future compliance and to compensate the non-offending parent for past losses caused by the other parent’s violations.

Possible Remedies

In situations in which one parent’s repeated failures to comply with a parenting time order rise to the level of being classified as “chronic and unreasonable,” Minnesota law provides a mechanism by which a party can bring a motion to modify the parenting time provisions of the order.  Additionally, in severe cases, Minnesota law also allows the non-offending parent to request that the court restrict the other parent’s parenting time going forward.  Of course, any proposed modification must be in the best interests of the child, which is always the paramount consideration.

One limitation applicable to parenting time modifications is that the proposed parenting time schedule cannot be a back-door attempt to modify custody. In other words, a party cannot seek to change the child’s primary residence through a motion to modify a parenting time schedule.  If a parent wishes to change a child’s primary residence, he or she must go through the custody modification process, which has different procedural requirements and heightened standards.

Additionally, if a court finds that a party has wrongfully failed to comply with a parenting time order, the court may:

1. impose a civil penalty of up to $500 on the party;
2. require the party to post a bond with the court for a specified period of time to secure the party’s compliance;
3. award reasonable attorney’s fees and costs;
4. require the party who violated the parenting time order to reimburse the other party for costs incurred as a result of the violation of the order; or
5. award any other remedy that the court finds to be in the best interests of the children involved.

Deprivation

In cases where one parent deprives the other parent of court-ordered parenting time, the court can award compensatory parenting time to the deprived parent.  In these cases, the compensatory time must be at least of the same type and duration as the parenting time the parent was originally supposed to have with the child, and it must also be at a time that is acceptable to the parent who was deprived.  The court also has the discretion to award additional time to the deprived parent above and beyond the amount of time the parent was deprived.  Further, unwarranted denial of, or interference with, court-ordered parenting time could also constitute contempt of court, and it may be a sufficient cause for reversal of custody in severe cases.

Aside from the potential civil consequences, a parent who wrongfully deprives the other parent of parenting time may also face possible felony criminal charges under Minnesota law.

Mediation

Anyone contemplating seeking relief from the court for violations of a parenting time order should initially review the order in its entirety.  In many cases, the parties are required to mediate any non-emergency issues in good faith prior to filing a motion or taking other action (note that seeking to appoint a parenting time expeditor is also a possibility, as discussed in LINK TO PARENTING TIME EXPEDITOR ARTICLE???).  The purpose of these “mediation clauses” is to provide a forum where the parties can discuss their grievances with a neutral third party in an effort to reach a possible resolution in cases where the parties are unable to resolve the issues between themselves.  Although the parties generally are not required to reach an agreement in mediation, the process may still prove to be a valuable exercise by narrowing the issues and affording the parties the opportunity to get informal feedback on the relative strength of their case.

Considerations Prior to Going to Court

Post-decree parenting time issues can be extremely challenging for parents, especially when either or both parties still harbor some degree of animosity or ill will as a result of leftover baggage from the relationship or from a contested divorce or custody proceeding.  The idiomatic expression that “calmer heads will prevail” is generally a good rule of thumb in parenting time disputes.  Parents wishing to pursue a remedy for violations of a parenting time order should be mindful that it will likely help their case tremendously if they can show the court that they have “clean hands.”  In other words, a court is much less likely to be receptive to a party’s argument when that party has been equally guilty of violating the order.

Understandably, it can be very difficult and frustrating (and possibly contrary to human nature) to “take the high road” in situations where the other party is being unreasonable and intentionally making your life unnecessarily difficult by violating the order.  However, the less mud you provide the other party to throw back at you in the courtroom, the better your case will look to a judge. I generally tell clients that before they say something out of a knee-jerk emotional reaction during a heated conversation with the other parent, assume that the conversation is being recorded and will be played back in front of the judge (note: the same assumption should apply to text messages).  Once the moment has passed and the emotions have subsided, it may be wise to consult an attorney as soon as possible to go over your rights and options.

Early Retirement Programs

Employers who are planning to reduce their workforce may legally institute early retirement programs which offer incentives to certain groups of employees who wish to take the opportunity to retire early. These programs are permissible so long as the choice to accept or reject the early retirement offer is truly voluntary and the employee is in no worse a position than other similarly situated employees if he or she does not elect the early retirement option. Employees must be given adequate time (a minimum of 45 days) and opportunity to become informed as to the advantages and disadvantages of accepting the early retirement offer and to consult with legal counsel.

Incentives often include benefits such as 100 percent vesting in the employer’s retirement plan, cash payments based upon years of service, and continued group health insurance coverage. Because of complex issues relating to these programs, such as coverage of the program under the Employee Retirement Income Security Act and the danger of inadvertently providing greater benefits to the younger members of the targeted group, an early retirement program should be undertaken only with the advice of legal counsel.

Forced or Coerced Into Early Retirement?

Be sure to speak with a qualified Minnesota employment attorney before accepting any retirement plans.

Minnesota Law

Minnesota law protects individuals who have attained the age of majority (18) from discrimination in the workplace based on age. Federal law, the Age Discrimination in Employment Act (“ADEA”), protects persons age 40 or older from age discrimination by employers with 20 or more employees. An employer who is not covered by ADEA may require an employee who has attained age 70 to retire. If such an employer adopts a policy of mandatorily retiring employees at age 70, the employer must post a notice to that effect which has been approved by the Minnesota Commissioner of Labor. If an employer intends to terminate an employee who is 65 years or older but not yet age 70 on the ground that the employee can no longer meet the requirements of the job, the employer must give the employee 30 days’ advance notice of intention to terminate the employee’s employment.246

Federal ADEA Employment Law

Please note that mandatory retirement at age 70, even though permitted under Minnesota law, is a violation of the federal ADEA, which applies to any employer who has 20 or more employees during each working day in each of 20 or more calendar weeks in the current or preceding calendar year.247 Part-time and temporary employees count in determining whether the employer meets the 20 employee threshold.

The ADEA protects any individual age 40 or over from adverse employment action based on age. Therefore, for employers with 20 or more employees, an employee age 40 or older can never be terminated because of age so long as that person is able to perform the job. Termination of an employee over 40, therefore, must occur for performance or another nondiscriminatory reason such as a reduction in force. Note that individuals over age 40 may bring age discrimination claims under the ADEA even if they are replaced by people younger than them who are also over age 40.248

Reverse Age Discrimination in Minnesota

Although age discrimination is generally thought of in terms of older workers, Minnesota employers must be mindful that they may not discriminate against younger persons on the basis of age. For example, an employer should not refuse to hire a 19 year old for a position merely because the individual is perceived as “too young.” The employer may, however, refuse to hire a 19 year old because that person does not possess the necessary skills to perform the job.

Both federal and Minnesota law provide exceptions to the prohibition on adverse employment action due to age. For example:

• In rare cases (e.g., in some situations, pilots, police officers or fire fighters), age may be a bona fide occupational qualification and, therefore, termination based on age may be permissible.
• When executives or high policy making individuals between ages 65 and 70 are terminated and provided with an annual retirement benefit of $27,000 (Minnesota law) or $44,000 (ADEA) for life, the termination may be permissible. The rules relating to this exception are complex.
• Other exceptions involve providing lower employee benefits to older employees based purely on cost, i.e., the cost of the benefit for the older employee is roughly the same as the cost for the younger employee but the older employee is entitled to a lesser benefit because of his or her age and life expectancy.

The use of any exceptions to either Minnesota or ADEA age discrimination prohibitions should be carefully planned with legal counsel.

When terminating an older employee, the employer should not mention the advisability or attractiveness of retirement, the need for “new blood” or the like in any discussions with the employee or with others. Although some courts have disregarded isolated stray remarks about an employee’s age, such remarks may infer an intent to discriminate, especially if made by a member of management or in the context of some adverse employment action against an older worker. The employer should never tell the employee that he or she is being forced or “asked” to retire, except under one of the very limited exceptions discussed above. Any such remarks could be used as evidence of age discrimination. The age factor should be eliminated in all discussions which relate to an individual’s employment unless the individual raises the subject, e.g., by asking questions relating to retirement benefits.

246. Minn. Stat. § 181.81, subd. 1 (2007).
247. 29 U.S.C. § 630(b) (2007).
248. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

MN Law — Minnesota Human Rights Act

Under the Minnesota Human Rights Act (which generally applies to employers with one or more employees), individuals with a disability are protected from discrimination in employment. A disabled person is one who has a physical, sensory or mental impairment that materially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.228

Qualified disabled persons (i.e., a disabled person who, with or without reasonable accommodation, can perform the essential functions required of all employees performing and/or all applicants for the job in question) are further protected under Minnesota law.229 Specifically, employers with 15 or more employees are required to make a reasonable accommodation to the known disability of a qualified disabled person, unless the employer can demonstrate that the accommodation would impose an undue hardship upon the business or organization.230 An individual who has a condition that results from alcohol or drug abuse and prevents that person from performing the essential functions of the job in question or poses a direct threat to property or safety of others is not a qualified disabled person.

“Reasonable accommodation” means the steps that the employer must take to accommodate the physical or mental limitations of a qualified disabled person that are actually known (or should have been known) to the employer. Reasonable accommodation may include, but does not necessarily require, the following:

• Making facilities readily accessible to and usable by disabled persons;
• Some job restructuring and reassignment to vacant positions which the disabled person is qualified to perform (but not creating new positions);
• Modified work schedules (which may include reduced hours, although an employer is not always required to offer part-time work as a reasonable accommodation);
• Acquisition or modification of equipment or devices; and
• Provision of aides on a temporary or periodic basis.
• In determining whether an accommodation constitutes an undue hardship, the following factors should be considered:
• The overall size of the business, including number of employees and number and type of facilities;
• The type of operation, including the composition and structure of the work force and the number of employees at the location where the employment would occur;
• The nature and cost of the needed accommodation;
• The reasonable ability to finance the accommodation at each site; and
• Documented good faith efforts to explore less expensive alternatives, including consultation with the disabled person or with knowledgeable disabled persons or organizations.

In determining whether an employee can safely and adequately perform his or her job, in spite of a disability, and what accommodations may be necessary, the employer is advised to rely on the advice of a competent physician. The employer should provide the physician with an accurate job description and request suggestions as to accommodation if the employee is unable to work without some form of assistance.

Please see the sections in this Guide relating to workers’ compensation and the Family and Medical Leave Act dealing with employer responsibilities toward individuals who have workplace-related injuries and are covered under Minnesota workers’ compensation law and who are entitled to family and medical leave. Employers should realize that their duties to their disabled employees should be analyzed with disability discrimination, workers’ compensation and family and medical leave laws in mind.

Federal Law — The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act231 (“ADA”), broadly prohibits discrimination on the basis of disability in employment (as well as in public services, public accommodations, public services operated by private entities, and telecommunications) and requires reasonable accommodation of a qualified individual with a disability. The ADA generally prohibits discrimination against a qualified individual with a disability, because of the individual’s disability, in all aspects of employment, including both the application process and the terms and conditions of employment such as compensation, advancement, training and discharge. The ADA applies to employers with 15 or more employees. The term “employer” is collectively used to refer to private employers, state and local governments, employment agencies, labor unions, and joint labor management committees. The term also includes “agents” of the employer, e.g., foremen, supervisors, or even agencies used to conduct background checks of applicants.232

In order to be “disabled” under the ADA, a person must be substantially limited in one or more major life activities such as seeing, hearing, walking, talking, or performing other functions.

A “qualified individual with a disability” is a person who, with or without reasonable accommodation, can perform the essential functions of the job. The same principles under Minnesota law regarding reasonable accommodation apply under federal law. A written job description that is prepared prior to advertising or interviewing applicants should state the essential functions of the job. Such job descriptions can be considered evidence of those essential functions.

Employers may deny employment to an applicant or remove an employee from a particular position if a job presents a direct threat to the person’s health even if there is no threat to others in the workplace.233

Employers ordinarily may enforce their seniority policies in assigning jobs, hours, and other conditions of employment notwithstanding requests by disabled employees for reasonable accommodation of their particular situation.234 However, employees requesting changes in jobs, hours or other working conditions on account of a disability should be permitted to show special circumstances justifying a deviation from the seniority system, such as the employer’s practice of unilaterally and frequently making changes to the seniority system.

On January 1, 2009 the ADA Amendments Act of 2008 (“ADAAA”) became law. The ADAAA significantly broadens the coverage of the ADA so that more employees with less severe impairments will be protected by the definition of “disability.”235 This means that employers will need to reevaluate the handling of employee disability and accommodation issues.

The ADAAA amendments do not change the wording of the disability definition—the definition of “disability” remains: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment.” Under prior law, however, Courts construed the term “disability” narrowly to create a “demanding standard” for qualifying as disabled under the ADA.236 The ADAAA amendments drastically change this standard, and explicitly mandate that the definition of “disability” is now to be construed by the courts in favor of broad coverage of individuals.

Similarly, the ADAAA amendments require the phrase “substantially limits” to be interpreted expansively in favor of broad coverage of individuals. Under the ADAAA, an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability. In addition, an impairment that is episodic or in remission will be deemed a disability if it would substantially limit a major life activity when active.

The ADAAA amendments include a non-exhaustive list of “major life activities.” These activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The amendments also include new language stating that the operation of “major bodily functions” is a major life activity. Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Prior law allowed employers to take into account corrective devices and mitigating measures (such as medications and medical equipment) when considering whether an employee was “disabled” for purposes of the ADA.237 The ADAAA amendments directly override prior law with respect to mitigating measures and corrective devices. Now, the ADAAA amendments mandate that the determination of whether an impairment substantially limits a major life activity must be made without regard to the effects of mitigating measures. The language of the ADAAA contains an exception for the effect of ordinary eyeglasses and contact lenses, which may still be taken into account.

As noted above, the ADA protects individuals who are disabled as well as those individuals who employers wrongly regard as being disabled. The ADAAA amendments provide that an employee is “regarded as” disabled if the employee was subjected to discrimination because of an actual or perceived impairment, without more. It does not matter whether the impairment actually limits or is perceived to limit a major life activity. Transitory and minor impairments, however, cannot be the basis of a “regarded as” claim. Transitory impairments are impairments with an actual or expected duration of six months or less.

Employers are strongly encouraged to consult with legal counsel regarding disability assessments and reasonable accommodation issues, particularly in light of the ADAAA amendments.

• View a copy of the Americans with Disabilities Act (“ADA”) at the ADA homepage

Specific Acts of Discrimination

The ADA prohibits:

• Limiting, segregating or classifying a job applicant or employee in a way that adversely affects his or her opportunities or status because of a disability;
• Participating in a contractual relationship, e.g., with an employment agency or labor union, that has the effect of discriminating against a disabled applicant or employee;
• Utilizing standards, criteria or methods of administration that have the effect of discrimination on the basis of disability or that perpetuate discrimination;
• Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to associate;
• Not making reasonable accommodation to the known physical or mental limitations of an applicant or employee with a disability unless the employer can demonstrate that the accommodation would impose an undue hardship on business operations;
• Denying employment opportunities to a qualified applicant or employee with a disability, if the denial is based on the employer’s need to make reasonable accommodation to the individual’s physical or mental impairment;
• Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with disabilities unless the standards, tests or other selection criteria are shown to be job related and consistent with business necessity;
• Failing to select and administer employment tests in a manner that will effectively ensure that test results reflect the skills, aptitude or other factors that are being measured, and not the impairment;
• Harassing a disabled person by creating a hostile or offensive working environment on account of the person’s disability; and
• Retaliating against any individual who opposes a practice prohibited by the ADA or enjoys rights under the ADA.

An employee or applicant who is engaged in the illegal use of drugs is not protected by the ADA. The employer may not, however, discriminate against a qualified individual who has successfully completed or is participating in a supervised drug rehabilitation program and is no longer engaged in the illegal use of drugs. An employer may adopt or administer reasonable policies and procedures, including drug testing, to ensure that the individual is no longer engaged in the illegal use of drugs. If the employer intends to use drug testing for this purpose, the employer should consult legal counsel in order to ensure that its drug testing policy (discussed in the Alcohol and Drug Problems in the Workplace section of this Guide) complies with Minnesota law. The ADA expressly allows an employer to:

• Prohibit the illegal use of drugs and the use of alcohol at the workplace;
• Require that employees not be under the influence of alcohol or not be engaged in the illegal use of drugs in the workplace;
• Require conformity with the federal Drug Free Workplace Act; and
• Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds other employees, even if unsatisfactory performance or behavior is related to drug use or alcoholism by the employee.

In addition to individuals currently engaged in the use of illegal drugs, the following individuals are not protected by the Act: transvestites, homosexuals, bisexuals, transsexuals, pedophiles, exhibitionists, voyeurs, individuals with gender identity disorders not resulting from physical impairments or other sexual disorders, compulsive gamblers, kleptomaniacs, pyromaniacs or persons with psychoactive substance use disorders resulting from current illegal use of drugs.

The ADA’s provisions are to be coordinated with the provisions of the federal Rehabilitation Act of 1973, which currently protects employees and applicants of employers who qualify as government contractors. The ADA is enforced by the Equal Employment Opportunity Commission (the “EEOC”) which has issued extensive regulations interpreting the provisions of the ADA.238 The EEOC also periodically issues written statements called Guidances that identify the EEOC’s interpretation of various provisions of the ADA. For example, the EEOC has issued Guidances on the meaning of “mental impairment,” disability related inquiries and medical examinations of employees and job applicants, reasonable accommodation and undue hardship, and related ADA issues. Employers should note that such regulations or Guidances may be modified or revised in light of the ADAAA amendments. Required posters describing employees’ and applicants’ rights under the ADA are available from the EEOC’s Minnesota Office at (612) 335-4040 or (800) 669-4000.

AIDS

An individual who has AIDS (or another infectious disease) is protected as a qualified disabled person under Minnesota law and the ADA so long as that person is able to perform the essential functions of the job and is not a health or safety threat to his or her coworkers. Courts have cast doubt on an employer’s ability to legally prove that someone with HIV (and possibly AIDS) actually poses a risk to the health or safety of others.239

However, while the risk of AIDS infection may be remote in most cases, an employer who knows that one of its employees has AIDS has a responsibility to its other employees to seek expert advice as to the risks of infection and preventive steps which may be necessary. AIDS-related information, as with all medical information relating to employees, must be kept in separate medical files, and treated as confidential medical records.

Pregnancy

Pregnancy is excluded as a disability under the ADA, but pregnancy-related conditions may constitute protected disabilities. Pregnancy is also a circumstance which may give rise to a claim of sex discrimination. A pregnant employee who is unable to work due to pregnancy or childbirth is entitled to the same disability plan benefits which are available for non-pregnancy related disorders. In addition, the benefits and conditions of employment extended to employees with other physical and mental disorders must be extended to pregnant employees. For example, if a male employee has a heart attack and is unable to work and absent for three months, and during that time the employer pays all benefits on behalf of the employee and restores him to his same position, the employer should do the same for an employee who is unable to work due to pregnancy-related physical restrictions. The employer’s obligation in this example does not apply to child care leave which does not involve physical restrictions on the employee’s ability to work.

If an employer has a question regarding pregnancy leave, the employer should also consider the discussion elsewhere in this Guide which focuses on various leaves of absence–disability, personal, family and parental–and the potential for discrimination violations with respect to the terms and conditions under which such leaves are permitted.

228 Minn. Stat. § 363A.03, subd. 12 (2007).
229 Minn. Stat. § 363A.03, subd. 36 (2007).
230 Minn. Stat. § 363A.08, subd. 6 (2007).
231 42 U.S.C. § 12101 et seq. (2007).
232 U.S. Department of Justice, The Americans with Disabilities Act: Title I Technical Assistance Manual § 1.1 (1992).
233 Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002).
234 U.S. Airways v. Barnett 535 U.S. 391 (2002).
235 42 U.S.C. § 12102 (2008).
236 Toyota Motor Mfg, Ky. Inc. v. Williams, 534 U.S. 184 (2002).
237 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
238 29 C.F.R. § 1630.1 et seq. (2007); Id. App. (2005).
239 Bragdon v. Sidney Abbott, 524 U.S. 624 (1998).
240 Minn. Stat. § 363A.03, subd. 36 (2007).

Many people wonder what laws or rules govern the relationship between the parties once a divorce action is commenced by service of the Summons and Petition, but before the final divorce decree is entered.  To many parties, it may seem as though they are “limbo land” mentally and emotionally until the divorce is finalized, but what are their rights and obligations legally?  Of course, each case must be analyzed according to its specific facts, but there are some general guiding principles to keep in mind.

Restraining Provisions in the Summons

Every Summons served in a divorce action contains specific provisions that govern the parties while the matter works its way through the system, which include:

• Neither party may dispose of any assets except: (i) for the necessities of life (including the necessary generation of income or preservation of assets); (ii) for retaining an attorney to represent a party in the divorce proceeding; or (iii) by a written agreement between the parties;
• Neither party can harass the other party; and
• Neither party may cancel an insurance policy or make any other change to an insurance policy with regard to coverage or beneficiary designation.

If a party violates any of these provisions, that party may be subject to sanctions imposed by the court.

Motion for Temporary Relief

Additionally, a party may also bring a motion for temporary relief during the pendency of the divorce to obtain a court order addressing matters such as:

• Temporary custody and parenting time of the children of the parties;
• Temporary maintenance of either spouse;
• Temporary child support;
• Temporary costs and reasonable attorney fees; and
• Awarding the temporary use and possession of the family home, furniture, household goods, automobiles, and other property of the parties.

When a Temporary Relief Order is obtained, it will govern the legal rights and obligations of the parties until the divorce is finalized, unless another interim order is granted and supersedes the earlier order.

Specific Orders Regarding the Children

As mentioned above, a party may bring a Motion for Temporary Relief to request that the court decide issues such as custody, parenting time and child support while the case is making its way through the system.  However, without a court order in place, the “default rule” regarding custody is that the parties share joint legal and joint physical custody of the child.  Additionally, the expectation is that the parties will equitably share expenses for the child during the pendency of the action absent a court order stating otherwise.

It is important to note that a temporary order cannot deny parenting time to a parent unless the court finds that the parenting time is likely to cause physical or emotional harm to the child.  Further, in situations where a party is successfully able to establish that there is an immediate danger of physical harm to a child by the other parent, a court is authorized to grant an ex parte restraining order that prevents the other parent from having parenting time with the child.

Disputes Are Common

Unfortunately, disputes regarding custody, parenting time, child support and property division/disposition (among other things) often arise in the middle of a divorce because the parties are not able to communicate effectively given the emotional nature of the divorce.  In these circumstances, it may be a good idea to seek legal counsel in order to know your rights and responsibilities in your specific case.  At that point, a determination can be made as to whether seeking a court order is right for you.