By Bryan Lake & Samantha Gemberling
Darkness had long descended on the state Capitol, but the Senate chamber remained brightly lit and buzzing with activity. It was shortly after 4:00 a.m. on May 4 by the time Sen. Bonnie Westlin rose to her feet. The Senate had been in session since the previous morning, and now, after 18 hours of debate, she needed to summon the energy to present a groundbreaking family law bill.
Tired as she was, Westlin, an experienced family law attorney, was made for the moment. No one in the Senate was better qualified to be the chief author of such expansive and far-reaching legislation: significantly modifying parenting time provisions, overhauling the spousal maintenance law, revamping the prenuptial agreement statute, and, for the first time in Minnesota history, creating statutory language to address assisted reproduction. It was probably the most broadly important family law bill considered by the Legislature in decades.
A casual observer might think the Legislature only deals with highly controversial topics, because those issues generate front-page headlines, stories on the evening news, heated discussions on talk radio, and deep divides on social media. But the truth is, controversial bills rarely become law. When they do, it usually takes single-party control of the House, Senate, and Governor’s Office, as well as legislation that is in tight ideological alignment with the majority party. In addition, those bills are often backed by politically powerful interest groups.
But those conditions arise infrequently. It is far more common for bills to pass the House and Senate only after interested parties and policymakers negotiate a satisfactory compromise. When that is achieved, legislators like to announce that there is “peace in the valley.”
With family law legislation, however, there is rarely any peace.
As a public policy arena, family law is unique. Family law legislation evokes strong feelings but frequently fails to break along party lines—an increasingly rare phenomenon on our polarized public stage. Legislators are often influenced by family court experiences that they, their family members, or their constituents have had, and legislative debates on family law initiatives often mirror the intensely emotional battles that judges and practitioners see in family court every day. Because opinions among lawmakers are so deeply personal, impassioned, and widely varying, it is exceedingly rare for a family law bill of any significance to garner enough support to pass out of one body, let alone make it to the governor’s desk.
But it happened in 2024. This is the story of how it got done.
THE LONG ROAD
During her first campaign for the Minnesota House, Rep. Peggy Scott (R-Andover) was walking a parade route when she stopped to chat with a man who asked about her views on shared parenting. He was a divorced father living in a rented basement bedroom. Listening to his story, Scott was reminded of her brother’s difficult divorce and the hardship it created for his children. She thought that there had to be a way to make family law less toxic.
Rep. Scott won election to the House in 2008 and began to discuss family law issues with her fellow legislators. She came to believe that if two parents cannot live under the same roof, state laws should focus on what is best for their kids, not who is the better parent. “Family dynamics in divorce situations are never easy,” she said, “but parenting isn’t a competition—and it shouldn’t be.” Based on previous compromises, under Minnesota law at the time of Scott’s election, each parent was entitled to a rebuttable presumption that provided them at least 25 percent of a child’s available parenting time. Scott felt that a rebuttable 50/50 starting point would be fairer to parents and better for kids. In the years that followed, this equal parenting time presumption would prove to be among the most divisive issues in family law, not only in Minnesota but nationwide.
Scott began to work on equal shared parenting legislation. By 2012 she had established herself as a tough and principled legislator, and she was able to pass a bill through the House that would have established a 45.1 percent parenting time baseline for each parent. That threshold did not have sufficient support in the Senate, but the Senate did return a modified version of the bill to the House with a 35 percent parenting time baseline. Willing to accept what was politically plausible in the moment, Scott asked the House to concur with the Senate version, which they did on an 86-42 vote, sending the bill to the desk of then-Gov. Mark Dayton.
Equal shared parenting proponents pressed Dayton to sign the legislation. Meanwhile, other groups that believed judges needed more flexibility to determine appropriate custody and parenting time arrangements based on the needs of individual kids—including the MSBA, the AAML, other legal professionals, and domestic violence groups—urged Dayton to veto the bill. Ultimately, Dayton opted for a “pocket veto” by taking no action. In a letter explaining his decision, Dayton wrote, “Both proponents and opponents make compelling arguments,” but he nonetheless felt “uncertainty about the ramifications of this legislation.” Dayton closed his letter by encouraging legislators and stakeholders to continue negotiating toward potential legislation for the following session.
Brian Ulrich was deflated by Dayton’s decision. As an advocate for an equal shared parenting presumption, Ulrich has been unfailingly polite, professional, and practical, which makes him stand out in a policy area where positions can be inflexible and tempers tend to run hot. Ulrich had been through a divorce and custody dispute in the mid-1990s, and then a separate custody case in 2009. He experienced many flaws in the process and pledged to himself that he would work to support family law reforms.
Along with other supporters, Ulrich spent hours at the Capitol during the 2012 session encouraging legislators to support an equal shared parenting presumption. Though he was deeply disappointed that the effort failed, Ulrich held out hope that the Custody Dialogue Group (CDG) would lead to important family law reforms. The group, created in the wake of Dayton’s pocket veto, comprised family law stakeholders including legislators, attorneys, judicial officers, child psychologists, shared parenting advocates, ADR professionals, and other experts.
Working with a mediator, the CDG was able to find areas of agreement. Ulrich, who was part of the group, said, “The challenge at first was lack of communication. But once the mediator focused everyone on finding common ground, we suddenly started making progress and seeing each other in a different light.”
After months of intense work, the CDG produced a number of legislative recommendations, including a revised version of the statutory “best interests of the child” factors that are necessary to inform custody decisions. Perhaps the most prominent proposed change in the best interest factors directed courts to analyze “the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent.” This language was an attempt to bridge the gap between equal shared parenting advocates and those who preferred to keep the existing structure for parenting time.
The CDG’s recommendations were passed during the 2015 legislative session as a package of bills that received strong bipartisan support. But many equal shared parenting advocates remained committed to their preferred policy change—a rebuttable 50/50 equal parenting time presumption.
During the 2019 legislative session, an equal shared parenting bill passed one committee in the Senate but did not reach the floor. Meanwhile, the House companion bill traveled a rocky path. First it was removed from an omnibus bill on a close vote in the Civil Law Committee, only to be resurrected and reinserted the following day. Later, the equal shared parenting language was offered as an amendment to a different bill on the House floor, but, to the dismay of Scott, Ulrich, and other advocates, the motion failed on a tie vote.
Following the failed floor amendment, the MSBA and the AAML began an extensive series of meetings with representatives of three shared parenting advocacy groups, including the Minnesota chapter of the National Parents Organization (NPO), which was represented by Ulrich and Charlie Hurd, the president of the NPO’s Minnesota chapter.
The goal of the ad hoc working group was to build on the efforts of the Custody Dialogue Group and try to find additional areas of common ground. After several months of work, tentative agreement was reached on a handful of proposed changes—but while the NPO remained at the table supporting compromise, the other two shared parenting groups remained focused on equal shared parenting legislation.
Over the next few years, the AAML, MSBA, and NPO continued to work together. The three groups also consulted extensively with the Legal Services Advocacy Project, which offered several helpful suggestions. In addition, feedback was sought from organizations that advocate for domestic violence victims.
What emerged from the years-long policymaking process were several proposals that could be grouped in three general categories: parenting time parameters, compliance remedies, and protocols for urgent scenarios.
The proposed legislation included a public policy statement that children should have “frequent and substantial contact” with fit parents, and that parents should be encouraged “to share the rights and duties of raising their child.” This provision was a compromise between the NPO’s desire for a rebuttable presumption of equal shared parenting and the opinion of the MSBA and the AAML that it was necessary to preserve flexibility for courts to deal with every family’s unique circumstances.
Regardless of statutory directions, any parenting time award is essentially meaningless if it is difficult to enforce. To that end, the legislative proposal clarified and strengthened the remedies available when one party intentionally and unreasonably withholds parenting time from the other party.
In addition, the draft bill closed a loophole that allowed noncompliant parties to avoid the risk of being saddled with attorney’s fees. When attempting to enforce parenting time orders, the existing statute only allowed attorney fees for actions taken after a motion was filed in court. As a result, parties were not compelled to abide by orders because there were no adverse consequences for forcing the other side to spend potentially large sums of money on attorneys in attempting to gain compliance (by measures such as engaging in mediation, for example). The draft legislation closed that loophole and made it possible to recover attorney fees for efforts to gain compliance with an order before a motion is filed.
The heart of the proposed legislation involved the timing of hearings in family court. The original goal was to address situations that NPO noted frequently occurred between unmarried parents—the breakdown of a mutually agreeable parenting time schedule that was derived by parental agreement, rather than by court involvement. Frequently a parent, before the breakdown of the relationship, had regular parenting time that was interrupted by the other party’s actions. In Minnesota an unmarried mother initially has sole legal and physical custody of the child by operation of law. If there was no open court file or court order between unmarried parents, breakdowns in these agreements could lead to dire consequences for an involved father with no court-ordered parenting time who was not married to the child’s mother. Conversations about this topic led to a broader discussion about the importance of timing in family court, and determining issues that require emergency hearings, issues that can be resolved through the regular temporary hearing process, and issues for which expedited relief is justified.
The discussions eventually focused on “freeze-out” situations, where parenting time or financial resources are unreasonably withheld. These urgent but not emergency scenarios could be dealt with under existing law in a temporary hearing, but not without the kind of delay that can disrupt an intact relationship between a parent and child. It can take six to eight weeks to get a temporary hearing on the court calendar; there may need to be additional time for briefing and pleading, and it can take up to 90 days for the court to issue its decision. That means the process can take seven to eight months, which can be very damaging in the life of a young child. Similarly, in cases where necessary financial support is cut off, such an extended delay can make financially disadvantaged parties feel pressured to make unwise long-term compromises about financial support so they can gain immediate relief.
Overall, the proposals were designed to quickly resolve common sources of conflict rather than allowing them to fester and create more tension. Brian Ulrich believed that the draft legislation included some critically important incremental steps that would prevent damage to parent-child relationships. Scott concurred; as she put it, “These changes will force adults to act like adults.”
Once the elements of parenting time reform were fully assembled and both the MSBA and the AAML endorsed them, the first section of a comprehensive reform package clicked into place.
But there were other sweeping changes afoot at the same time.
Modernizing maintenance
Minnesota’s spousal maintenance statute was overdue for a change, as the social and economic roles associated with marriage had shifted dramatically since its inception in the 1970s. Back in 2016, the MSBA and the AAML were contacted by a grassroots alimony reform group whose members were frustrated with the spousal maintenance statute and wanted to eliminate permanent maintenance. The MSBA and the AAML agreed that the maintenance statute contained portions that were vague and outdated. The goal was to modernize the statute to yield predictable outcomes that did not depend on external factors, like the county a party lived in, which judge was assigned to a particular case, or how much money a party had to litigate maintenance.
After several months of meetings, it became clear that the spousal maintenance statute needed more than tweaking; it needed a complete overhaul to reflect the changes in society, families, and gender roles in the decades since the statute was written. The AAML volunteered to undertake this work and come up with proposed changes.
The AAML formed a six-member drafting committee, and former Referee Kevin McGrath was asked to serve as the committee’s facilitator—a lion tamer’s job, because the committee members had vastly different opinions about needed reforms and how maintenance should best operate. But after a series of meetings, the committee found common ground and developed draft legislation that retained some parts of the original statute, eliminated others, and added several new and critically important provisions. The major proposed changes included the following.
Terminology: In the existing statute, maintenance was labeled “permanent” or “temporary.” But in reality, “permanent” never actually meant permanent, because it could be modified. The term often confused clients, who expected they would be paying or receiving maintenance until they died (as some did). “Temporary” also didn’t fit the bill, as it didn’t help recipients understand how to move forward after maintenance ended. The AAML committee reviewed the terminology used in all 50 states’ maintenance statutes before agreeing to change “temporary” and “permanent” to “transitional” and “indefinite.” The goal was to set clear expectations: “Indefinite” means maintenance payments could end at some point, and “transitional” underscores what the money is for—to help someone transition from one point in life to another. (As one might expect when a group of attorneys is wordsmithing a statute, there were at least two hours of meetings devoted solely to this topic.)
Employment: The existing statute required courts to analyze whether spouses seeking maintenance were able to support themselves “through appropriate employment” while considering “all relevant circumstances.” The proposed legislation deleted “through appropriate employment” because it had become a litigation flashpoint: Parties were arguing endlessly about what “appropriate employment” meant in different contexts. Still, under the proposed change, employment could and should be considered under the subset of “all relevant circumstances,” an analysis that allows a broader set of issues to be considered (such as other resources available to the maintenance recipient, the potential cost of childcare for a recipient who might return to work, and so on).
Debt: The draft statutory changes included a broader consideration of a couple’s marital standard of living—specifically, the extent to which the stated standard of living was funded by debt creation. This is a common issue in maintenance cases because many couples use debt to fund an unrealistic, “keeping up with the Joneses” standard of living that cannot be replicated post-divorce (especially when you consider that divorces create the expense of an extra household). The goal of the proposed change was to ensure that courts and parties contemplate what a realistic and sustainable standard of living would be.
Age and health: The existing statute only considered the age and the physical and emotional condition of the spouse seeking maintenance. The proposed revisions added consideration of the chemical and mental health of both spouses. This change addressed a broader range of circumstances, including those in which potential maintenance obligors had been top wage earners but chemical, medical, or mental health problems severely affect their ability to continue earning a high income.
Retirement: One of the AAML’s most significant proposals was a comprehensive treatment of retirement issues. The goal was to create fair expectations so (1) obligors would know if they could retire, and (2) obligees would know what to expect at the time of retirement. The first challenge was to determine a reasonable age for retirement. This required a measure—a place to draw a line in the sand. The committee adopted a line for retirement tied to when an individual reaches the age for full Social Security retirement benefits. This aligned with where most judges had coalesced in deciding contested cases. In addition, the draft statute incorporated consideration of a particular vocation’s typical age of retirement, an important inquiry for certain occupations (like air traffic controllers).
The proposal also took on a thorn in the side of many practitioners—the question of whether an obligee had to use retirement assets awarded to them in the divorce to meet their own needs in retirement at the time of a modification motion. The proposed statute took the opposite position from case law, requiring that, at the time of retirement, all available resources be used to fund retirement so that maintenance recipients cannot retain assets from the divorce without using them to meet their reasonable needs and expenses (often preferring to retain them for their heirs). Importantly, the draft legislation also allowed parties to bring motions for modification before actually retiring, making the process smoother, more deliberate, and more certain in its outcomes—so parties can retire without the risk of having their modification motion denied.
Durational guidelines: Noting that the two most litigated issues in maintenance cases (after determining whether maintenance is even appropriate) are “how much” and “for how long,” the proposed legislation’s most notable change created rebuttable statutory guidelines for the duration of maintenance, tied to the length of the marriage. The intent was to provide clarity and reasonable expectations for how long one could anticipate paying or receiving maintenance. The rebuttable guidelines were intended not just as a litigation framework, but also as a negotiating structure that would give parties and their attorneys clear parameters and standards, and therefore lead to more effective settlement discussions and less litigation.
Collectively, the point of these proposed changes was to provide greater clarity, certainty, and predictability, and thereby reduce friction, and eventual litigation, between parties. The draft spousal maintenance legislation was vetted by the MSBA’s Family Law Section before it was endorsed by the MSBA and the AAML in 2019. Rep. Scott, who had been kept apprised of these developments, reviewed the proposed language and agreed to introduce it in the House during the 2020 session.
That session would become memorable, but not because of family law legislation. As the parenting time and spousal maintenance proposals were rounding into shape, the world was rocked by the covid-19 pandemic. The crisis produced a flood of new and urgent policy issues that lawmakers needed to address while they simultaneously restructured the entire legislative process, moving it from the real world to a virtual environment.
For much of 2020, 2021, and even into 2022, the pandemic affected the Legislature’s operations and agendas, and a partisan split between the House and Senate made it difficult for the Legislature to align on policies and priorities. But finally, with covid-related issues receding and a newly elected DFL “trifecta” controlling the House, Senate, and Governor’s Office, the 2023-24 biennium looked promising for family law legislation.
SESSION ’24: THE LAST MILE
With the DFL back in total control at the Capitol for the first time in eight years, a long backlog of progressive priorities was considered in 2023, with an emphasis on bills that had a fiscal impact during that budget-setting year. But in 2024, the second year of the biennium, the MSBA set the spousal maintenance and parenting time bills as lobbying priorities and joined forces with the AAML to advocate for them.
Scott again offered to sponsor the spousal maintenance bill in the House. She also agreed to co-author the parenting time legislation, which, due to its sensitive subject matter, needed a chief author from the House’s DFL majority. (It is generally preferable to have a chief author from the majority party, particularly for bills that address controversial subjects.)
At the top of the list of potential authors was Rep. Kelly Moller (DFL-Shoreview), and fortunately she agreed to carry the bill. Moller, a respected and well-liked lawyer-legislator with a steel backbone, had previously played a leading role in some extremely contentious family law debates. She was encouraged to hear that some groups had found consensus on how to move forward in a productive way. In addition, Moller looked forward to collaborating with Scott. “Having Peggy onboard was key,” she said, “because I know how much she cares about equal shared parenting. Having her name on the parenting time bill was very pivotal.”
Much of the action at the Legislature is dictated by committee deadlines, which vary each year. In the 2024 session, the parenting time and spousal maintenance bills were put on the House Judiciary Committee agenda for March 19—just three days prior to the two chambers’ joint policy committee deadline. The committee passed the maintenance bill unanimously without any opposition testimony. The parenting time bill, on the other hand, faced opposition from a handful of shared parenting groups, who submitted a letter stating that “the proposed policy changes are unlikely to enhance family law in Minnesota; rather, they may escalate conflict.” The National Parents Organization,
however, had submitted a strong letter of support, which was influential for legislators who favored equal shared parenting.
Moller successfully moved an amendment in the Judiciary Committee to incorporate changes that responded to concerns raised by Legal Aid and domestic violence groups. After the bill was modified and thoroughly explained, the committee sent it to the floor on a unanimous voice vote.
A month later, on April 24, both bills passed the House on unanimous votes following what were, for family law bills, surprisingly short and unemotional discussions. The bills were halfway to the governor’s desk, but the Senate would prove to be a more challenging venue.
The partisan divide in the Senate was extremely narrow, with Democrats holding a slim 34-33 advantage over Republicans. The one-vote margin essentially gave every DFL senator veto power over every bill, which could create complications for even seemingly mundane matters—and family law legislation is never mundane.
For the parenting time and spousal maintenance bills, the key to unlocking the Senate was Bonnie Westlin, a first-term DFLer from Plymouth who somehow manages to be both delightfully sunny and completely no-nonsense. Many legislators avoid getting involved in family law bills because they attract so much controversy, but Westlin, who came to the Senate as an experienced family law attorney, wanted to dive in. She knew from firsthand experience that there were many areas where domestic relations laws could be significantly improved.
Westlin agreed to introduce the parenting time and spousal maintenance bills in the Senate. She also signed on as the chief author of a third family law bill that had the fingerprints of the AAML and the MSBA, this one bringing much-needed clarity to a niche area of family law.
Marriage and contracts: A necessary union
When she was a new attorney, one of Lisa Spencer’s first assignments was to research Minnesota’s prenuptial and postnuptial agreement statute. Spencer recalls learning that an idiosyncrasy in the statute—that it applied to nonmarital property but not marital property—was a political compromise necessary to pass the law in 1979.
The Minnesota Supreme Court first examined the statue in 1989 in McKee-Johnson v. Johnson, which confirmed that the statute only applied to nonmarital property, while the common law applied to marital property. But according to Spencer, attorneys continued to act as if the statute applied to marital property because “the whole point of a prenuptial agreement is that it converts marital property into non-marital property.”
Later, in the 2007 prenuptial agreement case In re Kinney, the Minnesota Supreme Court established a new common law multi-factor balancing test for procedural fairness. But Spencer said that Kinney was also largely ignored by practitioners, in this case because it dealt with an agreement that was signed before the statute was enacted.
But attorneys took quite seriously the Supreme Court’s fresh look at the statute in Kremer v. Kremer (2018). In Kremer, the Court reviewed a Minnesota Court of Appeals determination that agreements related to marital property “must be evaluated under the common law, regardless of whether they also address nonmarital property.” The Kremer Court decided that the statute only applies to nonmarital property, while the common law test articulated in Kinney applies to marital property.
Though Kremer ostensibly created a clear divide in how marital and nonmarital property is analyzed, Spencer thought the case created a circular argument, because the statutory definition of nonmarital property includes property that is excluded by a valid prenuptial agreement. (See Minn. Stat. 518.003 subd. 3(b).) In other words, “nonmarital property” could include marital property that is excluded by a prenup. Because many agreements deal with both marital and nonmarital property, some attorneys argued that no prenuptial agreement was valid.
The ambiguity and confusion created by Kremer led to an increase in enforceability challenges to existing prenuptial and postnuptial agreements. And due to this general uncertainty, many attorneys refused to draft new or modified agreements. This, of course, was antithetical to the public policy of encouraging parties to craft property-division agreements to reduce potential divorce litigation.
With a goal of providing clarity to parties, courts, and practitioners, the AAML formed a committee to rewrite the prenuptial and postnuptial agreement statute. Spencer and other experienced attorneys drafted the committee’s proposal, which was then vetted by both the MSBA’s Family Law Section and its Probate, Trusts & Estates Section before being endorsed by the AAML in 2019.
The draft legislation took the best pieces of the common law and the existing statute and reshaped them in a thoughtful and logical manner. From Kremer and the old statute, the proposal incorporated requirements for procedural fairness, full and fair disclosure of income and assets, and a meaningful opportunity to consult with counsel. And from McKee-Johnson, the legislation embraced enabling courts to consider whether agreements are substantively unfair. (This would keep Minnesota in a minority of states, but the AAML considered it an important element to maintain fairness.)
Most significantly, the proposal established a single standard that applies to all prenuptial and postnuptial agreements, whether they address marital property, nonmarital property, or both. In addition, the bill flipped the burden of proof to the proponent for agreements signed less than seven days before a wedding. (This was a best practice already used by many experienced attorneys and is considered a critical component in reducing opportunities for duress.)
Unlike the House, which has a Judiciary Committee and a Public Safety Committee, the Senate combines both issue areas into a single body, the Judiciary & Public Safety Committee. Because it has primary jurisdiction over so many civil and criminal law bills, and because other Senate committees refer numerous other bills to the Judiciary & Public Safety Committee, it is one of the busiest committees at the Capitol—perhaps the busiest.
The committee’s agenda was packed on March 22, the policy committee deadline day, with nearly 40 bills scheduled to be heard, including the parenting time, spousal maintenance, and prenuptial agreement bills. The committee was scheduled to convene at 9:00 a.m.; they started late, increasing the anxiety of all the clock-watching lobbyists who were aware of both the massive agenda and the looming 5:00 p.m. policy committee deadline.
In mid-afternoon, the committee took up the family law bills. For efficiency’s sake, Sen. Westlin moved an amendment that added the language of the spousal maintenance and prenuptial agreement bills to the parenting time bill. The package was discussed and then laid over for potential inclusion in an omnibus bill. But the following week, the package of family law bills was voted out of the Judiciary & Public Safety Committee and, after a quick stop in the Rules Committee, sent to the Senate floor.
There was one change, however: The three-bill package was now a four-bill bundle.
Assisted reproduction: Building Minnesota’s families
Legislation to regulate assisted reproduction—a topic on which Minnesota statutes were silent—has been introduced in different forms at the Capitol for many years. Those bills have always been controversial, particularly provisions related to surrogacy. With a few exceptions, Democrats generally supported the proposals and Republicans generally opposed them.
Republican Gov. Tim Pawlenty vetoed a gestational agreement bill passed by a DFL Legislature in 2008, citing a lack of protections for surrogate mothers and a failure “to recognize or protect the life and rights of the unborn child.” Over the next 14 years, various assisted reproduction bills were introduced. Some were comprehensive, some simple; some were DFL-only and some bipartisan. The one thing they had in common was an inability to pass both chambers of the Legislature. But with Democrats in full control for the 2023-24 biennium, it appeared that assisted reproduction legislation might finally have a good chance of passage.
HF3567/SF3504, the Uniform Parentage Act, was introduced on the first day of the 2024 legislative session. The feedback it elicited—from the MSBA’s Family Law Section, among others—suggested that it needed extensive vetting due to its wide-reaching impacts on many areas of family law. But the provisions addressing assisted reproduction appeared technically sound. The bill faced policy concerns related to surrogacy raised by some GOP legislators as well as conservative and religious interest groups. Their core concern was that surrogacy treats babies as commodities that can be bought and sold.
The Uniform Parentage Act bill was amended during its first committee hearing to reduce the legislation from 58 pages to 14. What remained were provisions related to assisted reproduction. A small group of experienced attorneys had drafted that language; their goal was to clarify confusion regarding how parentage should be established in assisted reproduction cases and to enact, for the first time, a statutory framework for surrogacy.
Attorney Gary Debele was involved in crafting the assisted reproduction language. In Debele’s view, the surrogacy part did not contain dramatic changes but merely standardized proceedings statewide and codified what most Minnesota courts were already doing. Debele also felt that the sections of the bill addressing in vitro fertilization and artificial insemination would be very helpful in eliminating difficult litigation that regularly arose when parties had agreements but relationships fell apart and bitter battles over parentage ensued.
The modified version of the assisted reproduction bill moved first in the House. It was heard in the Judiciary Committee and passed to the floor on a party-line vote with all Republicans members opposed. The following month, the bill passed the full House on a 68-61 vote after nearly three hours of debate.
Because floor time was at a premium in the Senate, a decision was made to roll the assisted reproduction language into the bill that already contained the parenting time, spousal maintenance, and prenuptial agreement proposals. To increase the likelihood of passage, surrogacy provisions were stripped out of the assisted reproduction language, leaving only statutory changes addressing in vitro fertilization and artificial insemination. Once that was accomplished in committee, the family law omnibus bill moved to the Senate floor.
As is often the case with legislation scheduled for floor votes, there were some final issues regarding the assisted reproduction language that had to be resolved before the omnibus bill was taken up by the full Senate. Given the one-vote DFL majority, it was imperative to ensure that the bill could pass, if necessary, with only DFL votes, so on the eve of the scheduled floor vote, there was a flurry of meetings, emails, phone calls, and text messages between shifting combinations of legislators and lobbyists to button up the assisted reproduction language. Finally, an agreement that assured DFL consensus was achieved at the end of a long day.
But the next day would be longer—much longer.
On May 3, the Senate convened a floor session at 10:00 a.m. They had a four-bill agenda, with the family law omnibus bill in the number four slot. An hour passed, and then two and then three. Hours four, five, and six ticked by, and the Senate was still debating the first bill. The floor session went on and on, stretching long past midnight until Sen. Westlin finally stood to present her family law omnibus bill shortly after 4:00 a.m. the next day.
The floor discussion proceeded apace. A technical amendment was adopted, two shared parenting amendments were defeated, and then the omnibus bill passed with unanimous support.
One final step remained. The House had passed the parenting time and spousal maintenance legislation as stand-alone bills, but the Senate had used the parenting time bill as the vehicle for the family law omnibus bill. Because the two chambers passed different versions of the bill, the House had two options: requesting a conference committee to iron out differences or concurring with the Senate version.
There were a couple of additional wrinkles. Sometimes, particularly late in a legislative session, legislative leaders will push a bill to conference committee and keep the committee open so the bill can become a vehicle, if necessary, for other issues. (This happened on the last night of the 2024 session, when a tax bill morphed into a 1,432-page mega-omnibus bill containing provisions that affected transportation, housing, labor, higher education, agriculture, energy, human services, and more). Another potential hurdle was that the prenuptial agreement bill had not been heard in a House committee because it was introduced in that chamber after the policy committee deadline. Sometimes legislators are wary of voting for a bill that has not gone through the committee process in the body in which they serve.
Rep. Moller wanted to concur with the Senate omnibus bill, and she had support from Rep. Scott and the House Judiciary Committee chair, Rep. Jamie Becker-Finn (DFL-Roseville). Moller’s request was granted, and on May 7 she rose on the House floor and asked her colleagues to concur with the Senate language. Scott expressed support for the motion and the full House then passed the omnibus bill on a unanimous vote. One week later, with a signature from Gov. Tim Walz, the bill—and all of its extensive changes to family law in Minnesota—became 2024 Session Law Chapter 101.
Reflecting on the experience, Sen. Westlin said, “One of the highlights of my legislative career was partnering with the MSBA and the AAML to bring much-needed updates to family law. Those changes are going to make things much clearer for practitioners, parties, and judges.”
Acknowledgments
So what is the moral of this story? For your authors, a veteran lobbyist with no family law background and a family law professional with no legislative experience, it is a story of tenacity, teamwork, and a seemingly endless supply of patience and optimism that good government will prevail.
To shepherd a comprehensive reform of a major component of a Minnesota Statute chapter that impacts thousands of Minnesota citizens every year, you need a lot of things to go right. You also need over 1,000 hours of time in meetings, hearings, consultations, discussions, feedback sessions, and just good old-fashioned problem solving, the willingness to read and reply to countless emails, good shoes for thousands of steps pacing the marble floors of the state office buildings and Capitol hallways, and the ability to engage in impassioned yet respectful debate and discussion that rivals even the toughest of courtroom legal arguments. You need the basics—like at least one bag of cough drops and more quarters for parking than you can imagine—and a demonstrated and unwavering commitment to success in the face of personal and professional sacrifice.
You also need a great team, which for us included Victoria Taylor and Kelsey Daniels, the co-chairs of the MSBA Family Law Section’s legislative committee; Brian Ulrich and Charlie Hurd, our partners from the National Parents Organization; countless MSBA and AAML members who helped with drafting and vetting; other stakeholders who were willing to engage on tough issues, most notably the Legal Services Advocacy Project; and the powerhouse trio of legislators who carried the MSBA/AAML proposals: Rep. Kelly Moller, Rep. Peggy Scott, and Sen. Bonnie Westlin. We are grateful for all of them.
BRYAN LAKE is a Minneapolis-based attorney who serves as the MSBA’s lobbyist. SAMANTHA GEMBERLING, a family law attorney in St. Paul, is the legislative chair for the Minnesota Chapter of the American Academy of Matrimonial Lawyers (AAML). They led the MSBA’s and AAML’s efforts related to the legislation discussed in this article.