Changes to Divorce Law in 2018

In my opinion, one of the most important changes to Minnesota divorce law in 2018 is the federal tax treatment of spousal maintenance. This occurred as part of the sweeping tax reform bill passed by congress and signed by the president in December, 2017.

Keep in mind, the change will not go into effect until January 1, 2019, but this is something that practitioners and clients need to pay careful attention to in 2018.

Beginning in 2019, spousal maintenance will no longer be tax deductible by the payor. And, it will be taxable deductible to the recipient.

In the past, if you were a person paying spousal maintenance, you were entitled to deduct it on your tax return. If you owed $2,000 per month, you could deduct $24,000 per year. Regardless of your tax bracket, this represented substantial savings. As of 2019, if you are paying spousal maintenance, you can no longer deduct it.

The reason you need to know about this before 2018 is that divorce decrees signed before 2019 that award spousal maintenance will be grandfathered in.  For all decrees entered in 2018, the person paying spousal maintenance will still be able to deduct it.  The deduction for the payor disappears in 2019.  So, if you are thinking about getting divorced and you are likely to owe spousal maintenance, you need to think about whether you want the divorce to be finalized prior to 2019.

Daniel M. Fiskum and Minnetonka Family Law, P.A., are conveniently located in the Carlson Towers at the intersection of I 494 and I 394 in Minnetonka, Minnesota. Call (952) 270-7700 now to schedule a free, in-person divorce case analysis.

MN Divorce and Taxes

With tax time coming, I am asked a lot of questions about divorce and taxes. Here are some things to keep in mind:

1. Transfers between spouses pursuant to a divorce decree are nontaxable.

2. Even if you are divorced, you can file a joint income tax return for the prior year if you were married when the year ended (December 31).

3. If you are divorced and choose to file a joint tax return for the prior year, it is best if you have a written agreement, signed by both parties, stating how the tax refund or tax debt will be divided.

4. A spouse who has received a portion of the other spouse’s retirement plan (a 401k plan, for example) can cash in his or her portion of the plan and does not have to pay the 10% penalty. This can only be done by the non-participating spouse. That spouse will still have to pay federal and state income taxes at whatever his or her tax bracket is, and the receipt of the funds might increase that bracket. If that spouse wishes to roll over the funds into his or her own retirement account (an IRA, for example) in order to avoid any penalty and taxes it needs to be rolled over within sixty days of the receipt of the check.

5. If you sign a joint return with your spouse (or former spouse, if you are filing for the prior year and were married on December 31) will will be jointly and severally liable for the payment of any tax due. And, if the return is amended and a higher amount is due, you will be liable for the higher amount, even if you do not sign the amended return.

If you have questions about this, feel free to call Minnetonka Family Law, LLC and attorney Daniel Fiskum. Our offices are conveniently located in the Carlson Towers, at the intersection of Highway 494 and Highway 394, in Minnetonka, Minnesota.

Call Daniel now at (952) 270-7700 to schedule a free case analysis.

Divorce Minnesota Style

There are some things about divorcing in Minnesota that are very predictable. There are some things about divorcing in Minnesota that are very unpredictable.

Child Custody and Parenting Time: More often than not, the custody and parenting time arrangement resembles the parenting contributions of each party prior to the divorce. If one parent was clearly the primary parent prior to the divorce, that parent often is the primary parent after the divorce. However, there are ways of changing this during the divorce process.

Child Support: the amount that a parent pays for child support is fairly predictable. It is a result of a computer calculation that takes into account both parent’s incomes, the number of children, each parent’s percentage of parenting time, and whether a parent has children from a prior marriage or relationship. Once these factors are know, the dollar amount of child support is very predictable.

Spousal Maintenance: In Minnesota, spousal maintenance is all over the map. By this I mean that the appellate courts give the trial judges wide latitude in establishing spousal maintenance. Different judges have different opinions. A judge with white hair who went to law school in 1975 is going to have a different attitude about spousal maintenance than a younger judge who went to law school in 2003.

Daniel Fiskum is a Minnetonka family law attorney with over 20 years experience. Call now for a free divorce case analysis. (952) 270-7700. Minnetonka Family Law, LLC.

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In Divorce, You Don’t Know What You Don’t Know

A lot of times people call Fiskum Law, P.A., to ask whether they “need” a lawyer for their divorce proceeding.  My answer is usually “yes, you probably need a lawyer.”  That’s different than saying that you can afford to hire a lawyer.  I am not your banker and I do not know the answer to this question.  Only you can make this call.

I am attorney Dan Fiskum.  When you get divorced, I am concerned about creating a bright future for you, and not just resolving your past problems with your spouse.

Here are some times when you really do need me:

1.  Your spouse has hired a lawyer.  If your spouse has hired a lawyer, you need one too.  Your spouse’s lawyer will NOT work for you.  In fact, in order to prove to your spouse how important it was to hire a lawyer, that lawyer is probably going to take advantage of your ignorance of the law.  I do not let opposing attorneys take advantage of my clients.

2.  You have a contested custody case.  A contested custody case is mostly about perceptions.  Think about it.  Does the judge really get to know you?  Does the judge go out to McDonald’s with you and the kids in order to see first hand just what a wonderful parent you are?  No.  At a temporary relief hearing you will spend 10 minutes standing in front of the judge, who may or may not have read the paperwork first.  What you say, how you comport yourself, and what you do not say, is all very important.  If you have never done this before, you need my help.

3.  You have a case that involves payment of spousal maintenance.  If spousal maintenance is at issue, you need a lawyer.  Many people make the mistake of thinking of spousal maintenance in terms of the amount of the monthly payment.  People make this same mistake when shopping for an automobile.  Instead, do the math.  For example, a spousal maintenance payment of $2,000 per month equals an obligation of $24,000 per year.  Multiply that amount by ten years of payments, and you are looking at a total payment of $240,000, which is almost a quarter of a million dollars.  If you were involved in a lawsuit that was worth a quarter of a million dollars, wouldn’t you hire a lawyer?

4.  Your spouse has accused you of domestic abuse.  This is a big one.  Do not try to handle this on your own, because you will most likely botch it.  If a court finds that you have committed domestic abuse, in today’s political climate this could interfere with your job, your future job, your future relationships, your right to own firearms for hunting, and all sorts of things.  (Yes – you heard me right.  If you are a sport hunter and a court finds you have committed domestic abuse, you cannot own firearms and you will not hunt again for a long, long time, if ever.)

5.  Your spouse wants you to assume all of the debt.  There many pitfalls when dealing with marital debt.  A lot of self-represented people agree to assume marital debt, believing that they will discharge this later in bankruptcy.  Of course, if they had competent attorneys, they would have been told that the law does not allow this, and that if they agreed to pay marital debt, or were ordered to pay it, it is NOT dischargable in bankruptcy and that debt is going to stay with them.  Think about it.  After your divorce, you have remarried and your new spouse wants to take a winter vacation to Mexico.  You say “Sorry honey.  I’ll be paying my ex-spouse’s bills for the next 20 years.  Let’s schedule our first vacation for sometime in the year 2034.

There are many other reasons to hire a skilled and experienced attorney.  I have been practicing divorce and family law in Minnesota since I graduated from the University of Minnesota School of Law in 1992.  I have been named a “Super Lawyer.”  I am a member of the American Bar Association and the Minnesota State Bar Association.  I enjoy helping people and I will help you.  Call me now at (952) 270-7700.

Fiskum Law Office, P.A., and Minnetonka Family Law, P.A., is located near the Ridgedale Shopping Center in the Carlson Office Towers, at the intersection of I 494 and I 394, in Minnetonka, Minnesota.

 

 

The Role of Mediation in Minnesota Divorce

As I have written about in the past, mediation is an important component of the divorce process in Minnesota courts. There is also another process that is similar, but different. This process is known as “Early Neutral Evaluation.”

What is the difference?

In mediation, the role of the mediator is to help the parties reach an agreement. The mediator tries to understand each party’s position, and why it is that the party has that position. The mediator then tries to help the parties come to an agreement by making a bargain that gives each party at least part of what it is they would like to achieve.

Mediation is confidential, which means that the things that are discussed are not allowed to be brought up in court. And, if mediation is unsuccessful, the mediation is concluded without comment by the mediator.

The Early Neutral Evaluation process adds at least one element that mediation does not have. If, at the end of the session, the parties have not reached an agreement, the evaluator will give an opinion as to what he or she believes that court would likely do, if the case came to trial. This opinion is also confidential. It cannot be discussed in court. It is intended to give the parties the benefit of the perspective of an unbiased third party.

There are two kinds of Early Neutral Evaluations – “Social” Early Neutral Evaluations, which deal with custody and parenting time, and “Financial” Early Neutral Evaluations, which deal with support, maintenance, and division of property.

Sometimes a couple who is divorcing will go to both kinds of ENEs, and sometimes they will only go to one. It depends upon what their issues are.

I am an attorney licensed to practice law in Minnesota. I have practiced family law for over 20 years. I have been named a “Super Lawyer.” My own thoughts about mediation and ENEs are as follows:

1. I think that if you are going to mediation or to an ENE, you need the advice of an attorney. You cannot bargain effectively unless you know what the law is, and how the law will be applied to your facts. Mediators and ENE evaluators will not practice law for you, they will not give you legal advice, and if you give up more than you need to, they will not care, as long as the case is settled.

2. Sometimes mediation is appropriate. Sometimes the ENE process is appropriate. Sometimes neither process is appropriate. I have been involved in cases in which the opposing party is very angry and wants to punish his or her spouse. That party may use mediation solely as a way to cause the other spouse to spend more money than he or she needs to spend (mediators and ENE evaluators need to be paid). This unethical, but it is fairly common and there is no effective remedy.

3. Especially before financial mediation or a financial ENE takes place, you need to know everything that can be known about yours and your spouses finances. You and your attorney need to review bank statements, check book ledgers, paycheck stubs, and tax returns. You need to know what your retirement assets are worth. If there are pre-marital components to your assets, you need to know what these are worth. Otherwise, mediation and the Financial Early Neutral Evaluation can be a waste of time.

4. Most importantly, you need to have a sense of “proportion.” In other words, how much do you want to spend – in mediation or litigation – to achieve your goals? If you have a marital estate worth 5 million dollars, then it makes sense to spend an adequate amount of money to trace marital and non-marital claims, and to assert your rights during the divorce process. If you have a marital estate that is worth 5 thousand dollars, you should not be spending a lot of money on attorneys fees, or on mediation or an ENE. Its that simple.

If you have questions about this, please feel free to call me directly at (952) 270-7700. My name is Daniel Fiskum, I am a Minnesota Divorce Lawyer, and I would be happy to help you.

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10 Things Divorcing Fathers Need to Know

If you are a father who is seeking custody of your children, or equal parenting time, etc., you need to know the following ten things:

1. The names of your children’s school teachers;
2. The names of your children’s doctors;
3. The names of your children’s best friends;
4. The names of your children’s pets;
5. Your children’s favorite TV shows;
6. Your children’s clothes and shoe sizes;
7. Your children’s favorite toys;
8. Your children’s favorite, healthy foods;
9. Your children’s on-line, Internet activity;
10. Effective methods of discipline that do not involve physical punishment.

A lot of divorcing fathers do not pay attention to this information. Then, when it comes time to attended a Social Early Neutral Evaluation meeting, or mediation, or a deposition, when asked these questions they look like they are out of touch with the real needs and situation of their children. This will sink their claim for joint physical custody and equal parenting time faster than a torpedo.

If you have questions about this, call Minnetonka Divorce Attorney Daniel Fiskum at (952) 270-7700. Like any responsible attorney, I cannot give legal advice over the telephone to someone I do not know. But, I offer a free initial divorce case analysis and I encourage you to take advantage of this.

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Holiday Parenting Time in Minnesota

I am frequently asked questions about holiday parenting time and how that is allocated between divorced parents. Sometimes this can be a contentious issue, especially if one parent wants to bring the children to a family gathering that is out of state.

Generally speaking, Minnesota courts try to allocate holiday parenting time fairly, keeping in mind the needs of the children, and, to a much lesser degree, the wishes of the divorced or separated parents. I think its fair to say that most judges will try to divide up holidays evenly. Christmas Eve and Christmas Day are typically considered to be two separate holidays. One parent might be awarded Christmas Eve, including the overnight, and the other parent would then be awarded Christmas Day, from 9:00 a.m. until the following day. It would be unusual for a judge to grant one parent both days, even if a parent wanted to leave the State of Minnesota for a visit with relatives.

Other holidays are treated somewhat differently. They are usually alternated on a yearly basis. The main holidays are New Year’s Eve and Day, Easter, Memorial Day Weekend, Fourth of July, Labor Day Weekend, Thanksgiving, Christmas Eve and Christmas Day. These generally are alternated between the divorced parents on a yearly basis. Minnesota has an “extra” holiday, namely the MEA break that occurs in October, and this is sometimes included. Also, Father’s Day is always awarded to the father, and Mother’s Day is always awarded to the Mother.

If you are a divorcing or divorced parent and you expect parenting time problems with the upcoming Christmas holidays, you need to take steps to resolve these now. Courts typically don’t have the availability the day before a holiday to resolve disagreements.

I am a Minnesota divorce attorney with an office located in the Carlson Towers in Minnetonka, Minnesota, at the intersection of Highway 494 and Highway 394. If you have any questions about this or any other divorce topic, you should feel free to call me at (952) 270-7700 for a free consultation.

Dan Fiskum
(952) 270-7700

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Superbowl and Divorce

Well, the 2011 Superbowl, the annual football game of the century, has finally come and gone and Green Bay is victorious.  Unfortunately, the Minnesota Vikings were again unavailable to play in the Superbowl this year, but since I have lots of friends in Wisconsin I’m glad they got to win it.

So what does the Superbowl have to do with divorce?  Well, I have been practicing divorce law in Minnesota since 1992.  My experience is that the number of divorce filings increases significantly after the Superbowl.  I am not sure why that is.  I think its possible that people who are thinking about getting divorced in the fall tend to put it off until after the holidays.  The holidays come and go, and they wait a few weeks, the Superbowl is played, and people start thinking about the spring and doing things that they had put off until after the holidays.

If you are now thinking about getting divorced, give me a call for a free divorce case analysis.  Call me at (952) 270-7700.

Something A Little Different

Hey everyone,

I just thought I’d let you know that I am participating in the Cry America 5K run / walk fundraiser that will be held at Como Lake on Saturday, July 17, 2010.  Cry America is a charity that supports education and health care for children in India, and also supports Boys and Girls Clubs in the United States.

Read more about it here: http://www.america.cry.org/cryevents/walk/walk.

MN Divorce, Fear and “Discovery”

I am a Minnesota divorce lawyer.  I practice divorce law in Hennepin County, Minnesota.  Divorce varies significantly from state to state, because it is pretty much a creation of state (not federal) law.  However, one thing that I think is common in all divorces, regardless of where they take place, is “fear.”

One of the things that really sucks about divorce is fear.  Yep.  The garden variety, common, every day fear.  People who are getting divorced are venturing into the unknown.  Emotionally, financially, in just about every way, their life is going to change.  This causes many people to experience fear.  They might not call it “fear,” and their inner experience may resemble anxiety, depression, concern, etc., but in its most primal form, in my opinion the bigger problem is just fear.

Assuming that one is not a robot, I think that much of the emotional trauma that is attendant to divorce is unavoidable.  But, one way to alleviate some of the fear is to make sure that you have complete and accurate financial information about your spouse’s (and your) assets, income and debts.  Even if you and your spouse are going to reach an amicable settlement where you each sign a written agreement (a “Marital Termination Agreement” in Minnesota) and walk away, you need to know about your spouse’s assets, income and debts.

For some of you this is easy.  Your house is underwater, your spouse has been unemployed for years, and you have few retirement assets.

For some of you this is more difficult.  You each have retirement assets, some of which was accrued before, and some after, the date of marriage.  You have a house, cars, lots of bills, but also adequate income to pay most of the bills on time.

Before the divorce starts, you should make copies of important financial documents.  This includes income tax returns for the past several years, W-2 forms, 1099 forms, retirement account statements, documentation of the purchase of your home, recent paycheck stubs, credit card statements, bank account statements, check book registers.  I am not telling you to break into your spouse’s private records, but if copies of these documents can be made easily, you should do it.  Then, you should but them in a box and take them to your friend’s house for safe keeping, until you need them.

If you cannot find copies of these documents, there is a process your attorney can follow during the course of the divorce proceedings called “discovery.”  Essentially, your attorney can compel your spouse to turn over copies of all important documents.  Your attorney can compel your spouse to answer questions about his or her finances, and anything else.  Your attorney can also subpoena other people and require them to provide information about your spouse under oath.  This could include your spouse’s employer, his or her banker, or anyone else who might have information.

Here’s the thing: discovery is expensive.  If you can obtain financial information informally, that’s best because it doesn’t cost as much money.

If you have any questions about this, call Minnetonka divorce attorney Dan Fiskum at (952) 270-7700.

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Sandra Bullock’s Divorce

It is in People Magazine today, so it must be official: Sandra Bullock is filing for divorce.  Apparently she and her estranged husband Jesse James began adoption proceedings about four years ago, and just within the past few months brought their child home.  It is unusual for a divorce proceeding to emerge in the midst of an adoption proceeding.  Its probably happened before, but I am not aware of any cases in Minnesota.  In part, this is because in Minnesota, adoption cases are strictly confidential.

I always think it is unfortunate when public figures have to go through public divorces.  I suppose a public divorce goes with the territory.  Of course, I know that any public figure is really a business enterprise–they have pubicists, press agents, wardrobe stylists–literaly dozens of people whose job is to run the business that is the public figure–in the case, Sandra Bullock.  But, I also know that behind the layers of carefully crafted public persona there is a real human being who is experiencing fear, sadness, anxiety, depression, and sometimes embarassment.  Of course, I do not think that Ms. Bullock has anything to be embarassed about. 

So, how does the adoption fit into the scheme of things?  The law could be different in California.  But in Minnesota, its possible that now the adoption might not go through, if both parents are jointly petitioning for the adoption and one of them starts a divorce proceeding.  Its hardly in the best interests of a child to allow him or her to be adopted by two parents who are divorcing.  Minnesota does allow a single parent to adopt, and it is possible that a Minnesota court might allow one of the parties (in this case, Mr. James) to be dismissed from the proceeding and allow Ms. Bullock to adopt as a single parent.  But, this would likely require Mr. James’s consent. 

I doubt that child support will be an issue for either Ms. Bullock or Mr. James.  But, for ordinary people, the issue of paying child support for an adopted child for the next 16 to 18 years could be a big issue.  And, in Minnesota the courts are supposed to take into account the ability of a proposed adoptive parent to support the child he or she is adopting.

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Living Together Without Marriage

Occasionally someone will ask me about cohabitation in Minnesota.  “Cohabitation” is another way of saying “living together.”

If you are thinking of moving in with your boyfriend or girlfriend without getting married, here are some things to consider:

If you are going to contribute towards payment of the mortgage, you should have something in writing stating very clearly that you are doing so.  The document should also state what, if any, ownership interest you will have in the house because of your mortgage payments.  Your name should also go on title to the house by way of a quit claim deed or other deed that transfers an ownership interest to you.

If you do not do this, and if the relationship ends, you will have nothing to show for all of your mortgage payments.  You will not be married, so  there will not be any marital property that you have an interest in.

Minnesota does not have “palimony.”  In fact, it has a law that specifically says it does not have palimony.  This means that you will not be entitled to any payment similar to spousal maintennace when you split up.  It also means that you are not entitled to any of your partner’s property when you split up.

Verbal agreements do not count.  With respect to real estate, verbal agreements are strictly prohibited.  If you want to claim an interest in someone else’s real property, you should be on title and you absolutley must have a fully signed written contract that sufficiently describes your interest, the consideration you paid for your interest, and the way the value of your interest should be determined. 

With respect to personal property, verbal agreements are extremely difficult to enforce.  I usually tell people that verbal agreements are not worth any more than the paper they are not printed on.

If you are living with your partner and he or she dies, if you are not on title to the house your partner’s heirs could force you to move immediately.  Of course, your partner could name you as a beneficiary in his or her will and award the house to you, but if he or she does not, you will have a problem.

If you are not married, and not on the mortgage and do not appear as an owner of record on the house, but you make contributions to the monthly mortgage payment (PITI) , you cannot deduct the property taxes and interest on your income tax returns.

I recommend that people who have a significant romantic relationship, and are thinking about moving in together, should have a written partnershiup agreement that clearly states who will pay for what.  If you believe that you both “own” your boyfriend’s or girlfriend’s house, then you should put it in writing.

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MN Divorce Attorney

The phrase “Minnesota Divorce Attorney” is one of the phrases googled most often by people in Minnesota who are considering a divorce.  I suppose this is appropriate because it does make it easy for someone to find a list of Minnesota divorce attorneys.  But my experience is that after making an inquiry or two, people often select an attorney who many not be the best attorney for them and their situation.  Often, people do not know the right questions to ask.   Usually it is the first time they have hired an attorney and they just do not know how to proceed.

For example, many attorneys offer a so-called “flat rate” divorce.  They say that you can pay them a pre-defined amount and they will do all of the work.  My personal opinion is that this creates a possible conflict of interest between the attorney and the client.  Think about it.  Attorneys sell their time.  Imagine that an attorney has signed a so-called “flat rate” retainer agreement.  Imagine that something goes “wrong” with the process.  Either the parties cannot reach an agreement, one spouse is hiding assets, alienating children, or imagine that there is one of possibly a hundred of issues that can derail a divorce.  Imagine that this work takes a lot of “extra” attorney time.  Do you think the attorney is going to do that work for free?   Probably not.  Either she is going to not do the work (and pretend it does not need to be done) or she is going to tell you that it is time to negotiate a new retainer agreement.

If someone has been married for six months, has no children, no mortgages, no debt, then possibly a flat-rate divorce attorney might be adequate.  This is kind of like someone who visits the doctor’s office with a common cold or the flu.  The nurse can take their temperature, give them some Sudafed, and send them on their way with instructions to eat lots of chicken soup.

But, what if the person doesn’t really have a common cold, but has instead had a mild heart attack.  Mild heart attack symptoms can mimick flu symptoms.  In that case, you really do want to be checked out and diagnosed by a medical doctor.  

Usually people who get divorced have been married at least a few years.  They have intertwined finances, they own property together, often they have a lot of debt, they typically have retirement assets, and more often than not they have minor children.   In this factual stew, there are a lot of significant issues that can be overlooked by someone who is trying to work a “flat-rate” divorce.

Here’s the answer: if you are looking for a divorce attorney, you should meet personally with at least three attorneys and get a feel for them.  Ask them how many of their cases settle and how many go to trial.  Ask them what law school they went to.  Ask them about their caseload.  And, most importantly, try to get a sense for how they might handle your case.  You can also check with the Minnesota Lawyer’s Professional Responsibility Board to see whether the attorney has had complaints filed against them, and whether they have attorney malpractice insurance.

Of course, nothing can ultimately guarantee a result.  But, it helps if you have good information before you make a decision.

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Happy New Year

Hi Everyone–

Today I don’t have any particularly profound comments about divorce in Minnesota.  I want to wish my friends, followers and clients a Happy New Year.  If you are one of my clients, you need to know that no matter how difficult your personal situation is at the moment, things do get better.  I’ve gone through it myself and I can say this from personal experience.

If you have been following my blog and have particular topics that you would like to suggest, e-mail me and I will consider it.  I cannot give advice that applies a specific analysis of the law to your particular facts in a blog post.  If you want that, you need to hire me as your attorney.  But, I can probably give you enough general information to help you get a better perspective.

So, Happy New Year to all!

Dan Fiskum

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MN Legal Separation and MN Divorce

Occasionally I am asked about the difference between a legal separation and a divorce.  As always, my comments on this blog pertain to Minnesota law only.  Though Minnesota family law is often similar to family law in other states, as often it is not.  There is no federal “family law,” and there very few federal appellate cases that pertain to family law issues.

In Minnesota, a divorce ends a marriage.  A divorce decree terminates the marriage.  If the parties have children, the divorce decree will say who gets custody, who gets parenting time and in what amount, who pays child support, and how much child support is paid.  The divorce decree will also say who pays alimony, if any, and who gets what property.  It will also assign responsibility for debts to one party or the other, or to both parties.

In Minnesota, a legal separation does not terminate a marriage.  A decree of legal separation essentially states that the parties are separated.  Then, it goes on to say, on a temporary basis, who has temporary custody of the children, who pays temporary child support, and how much temporary child support is paid.  It also says who pays temporary alimony, if any, and, on a temporary basis, who gets to temporarily use the property.  It also says who, on a temporary basis only, has to pay which debts.

The key word here is “temporary.”  A legal separation is not a final dissolution of a marriage.  It is temporary.

In Minnesota, a proceeding for legal separation cannot be “converted” into a divorce proceeding.  These are two distinctly different proceedings.  If you first file for legal separation, then decide to get divorced, the attorney needs to prepare new pleadings for the divorce.  A new court file is opened, with a different court file number.  You might have a different judge.  You will need to pay the first court filing fee of $400 for the legal separation, and you will need to pay a second court filing fee of $400 for the divorce proceeding.

Often, people who seek a legal separation do so because they realize they cannot live together, but for religious or philosophical reasons they do not want to get divorced.  A legal separation does take cooperation between the parties, because if one party decides that he or she wants to get divorced (instead of getting a legal separation) the other party has no legal basis for opposing the divorce.  It just takes one person to say that there has been an ‘irretrievable breakdown” in the marriage relationship, and the court will grant the divorce over the other party’s objection.

If you want to know more about the difference between legal separation and divorce in Minnesota, feel free to call me at (952) 270-7700.

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What If You Do Not Serve An Answer?

In Minnesota, a divorce Summons contains a formal notice that the person being served with the Summons and Petition has thirty (30) days in which to serve an Answer.  What happens if you do not serve an Answer?  The answer is simple: you lose. 

An “Answer” is a formal pleading that is similar to the Petition.  A letter stating your objections to the relief requested in the Petition is not an Answer.  Neither is a telephone call to your spouse’s attorney.  An Answer is a formal pleading that is filed with the court.  If you do not serve a formal Answer within thirty (30) days of the date you were served with the divorce Summons and Petition, your spouse’s attorney can go to court without telling you.  He or she can ask for anything (again, without telling you) and he or she will probably receive an Order granting whatever it is they ask for. 

The result can be a disaster for you.  Your spouse can get all of the property.  Your spouse can get custody of the kids with little or no parenting time going to you.  Your spouse can get an Order requiring you to pay exhoribant and unfair amounts for spousal and family support.  It is very difficult to overturn a default Order.  If you snooze, generally speaking the court will not care why.  If you do not serve an Answer, you lose.

Recently I dealt with an unscrupulous Minnesota divorce attorney.  He (along with an attorney colleague) represented a family member (a mistake), and the attorney was as bitter about the divorce as his client.  He and the other attorney had the divorce petition served and then (apparently) instructed the client to “negotiate” with the spouse for thirty (30) days.  The spouse was not very savvy.  She thought that as long as she and her spouse were negotiating, everything was fine.  But, after thirty (30) days, the unscrupulous Minnesota divorce attorneys went to court and obtained a default divorce Judgment and Decree giving their client everything–including the house and all of the $100,000.00 plus retirement assets.  The spouse who failed to answer (because she thought she was negotiating with her spouse) got nothing.  When she realized what had happened, she called my office.  She was frantic.

I immediately went into action.  In cases like this, even a few days delay can prove fatal.  I contacted the court and scheduled an emergency hearing to try to vacate the divorce Judgment and Decree that had been entered without my client’s knowledge or consent.  I filed our pleadings as soon as possible.  The court held a hearing and when it became clear what had happened, the court threw out most of the provisions of the divorce Judgment and Decree.  I was then able to push for an equal division of assets.  Eventually, my client did get an equal division of assets.  However, the cost of the proceeding to reopen the case could have been avoided.  And, there was no guarantee that we would have won.  When the judge heard my argument to reopen, it was pretty clear what the other side had done.  But, not all cases are quite so clear.

The moral of this story is when you are served with a divorce Summons and Petition in Minnesota, do not wait.  Do not stick it in a pile of papers on your desk, to be looked at in a few weeks.  Do not assume your spouse is “nice” and will cut you slack.  Instead, call an attorney and take all appropriate steps to protect your future.

As always, you should feel free to call Fiskum Law at (952) 270-7700 with any questions.

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What is “No Fault” Divorce in Minnesota

Minnesota is a “no fault” divorce state.  To the best of my knowledge, most, if not all states in the United States are no fault divorce states.

What this means is that in a Minnesota divorce proceeding, one does not have to prove that the other spouse is at fault before a divorce can be granted.  One does not have to prove that a spouse did something “wrong.”

Historically, one was not always entitled to a divorce.  One had to first prove to the court that one’s spouse did something wrong–in other words, that the spouse was “at fault.”  Typically, the person argued that the spouse had committed adultery, was a habitual inebriate, or had engaged in physical or mental cruelty.  If one could prove one of these claims to the satisfaction of the court, then one could obtain a divorce.

Today this is no longer the case.  In a Minnesota Petition for Dissolution of Marriage, all one needs to say is that there has been an “irretrievable breakdown” of the marriage relationship.  Generally speaking, whether the other spouse has committed adultery or is a habitual drunk is irrelevant to the divorce.  You do not need a reason or a justification for the divorce.  Just the fact that you want to get divorced is sufficient reason.

However, there are Minnesota divorce cases where adultery or habitual drunkenness is a factor.  For example, if a spouse has spent a significant amount of marital funds on his or her girlfriend or boyfriend, these funds are recoverable in the divorce proceeding.  If a spouse has a new boyfriend or girlfriend, this can be relevant to the issue of child custody and parenting time.  Usually it is not, but if the new boyfriend or girlfriend is prone towards emotional or physical bullying or violence, or drunkenness, this can impact the children and it is relevant.

If you have questions about this, or any other Minnesota divorce issues, call Fiskum Law at (952) 270-7700.

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How Long Does It Take To Get Divorced in MN?

I am occasionally asked how long it takes to get divorced in Minnesota.  The answer is “It depends.”  It can take anywhere from about 6 weeks to a year and a half or more, depending upon whether the parties can cooperate, and depending upon the issues involved.

First, in order to begin a divorce proceeding in Minnesota, one of the spouses has to have lived in Minnesota for the previous 6 months.  If you or your spouse have not yet resided in Minnesota for 6 months, you cannot start a divorce proceeding.  If you have recently moved,  once you have lived in Minnesota for 6 months you can start a divorce proceeding in a Minnesota court.  Typically, a divorce proceeding takes place in the county in which one of the spouses resides.  (Note that this is not an absolute requirement.  Very rarely there may be a reason to start a family court proceeding in a county other than that in which one of the parties resides.)

In Minnesota, a divorce proceeding is commenced by personal service of a Summons and Petition for Dissolution of Marriage.  “Personal service” means tht the Summons and Petition for Dissolution of Marriage are personally handed to the opposing party by someone, just like on TV.  The person doing the serving cannot be a party to the proceeding and it should not be a child.  It is usually either a deputy sheriff or a professional process server.  The opposing party may agree to waive personal service by signing an Admission of Service.

It takes time for parties to reach an agreement.  This is true even when both parties reach an agreement on the “important” issues.  Usually there are issues that parties do not think about when they negotiate an agreement by themselves.  The Marital Termination Agreements that my office prepares can be 10 pzges or longer.  If parties reach an agreement quickly, the divorce process moves quickly.

Technically, courts are not supposed to grant divorces until at least 30 days has lapsed since the date of service of the Summons and Petition for Dissolution of Marriage.  And, if a party is in default, after the 30 days has lapsed there is an additional 20 day waiting requirment.  But, if the parties have an agreement, they should expect the process to take at least six weeks, minimum.  However, in Minnesota counties with large populations (Hennepin County, Ramsey County, Anoka County, for example) it can take a lot longer for a divorce to be concluded.  This is because the courts in these counties have a high number of divorce cases spread out between a small number of judicial officers.  It just takes longer.

If the parties do not have an agreement early on in the proceeding, the mediation process can take several months.  If the parties go to trial, it would be rare for a trial to occur sooner than nine months after the Summons and Petition for Dissolution of Marriage have been served.

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Modifying Divorce Decrees in Minnesota

In Minnesota, it is possible to modify certain parts of a divorce decree after the divorce is final. 

A Minnesota divorce becomes “final” when the judge has signed the divorce Judgment and Decree (the full title of the document is “Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree) and the clerk of court has entered the Judgment and Decree into the court record.  A divorce is not final until the clerk of court has taken this last step.  In larger counties in Minneosta, this often does not happen until several days after the judge has signed off on the Judgment and Decree.

Once the divorce judgment is entered, either party has 60 days to file an appeal with the Minnesota Court of Appeals.  If 60 days has lapsed with no appeal filed, the the divorce Judgment and Decree is final and can no longer be appealed.

However, certain aspects of the divorce Judgment and Decree can always be reopened and modified, provided this is justified by new circumstances that evolve after the divorce is final.  Generally speaking, those portions of the divorce Judgment and Decree pertaining to property division remain final and cannot be reopened or modified.  There is an exception if it can be shown that a spouse engaged in fraud. 

But, those portions of the divorce Judgment and Decree pertaining to child custody, parenting time, child support, and alimony or spousal maintenance can be reopened and modified.  In order to do this, one generally has to show that there has been a change of circumstances that makes the terms of the current Judgment and Decree unreasonable and unfair.  Or, in the case of child custody and parenting time, one has to show that a modification of the custody and parenting time provisions would be in the child’s best interest.  There specific things one needs to prove in order to do this, and there are timing requirements and legal standards that one needs to meet. 

If you need to know more about this subject, feel free to call Fiskum Law at (952) 270-7700 for a free consultation.

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Child Support in Minnesota

People frequently ask me how the Minnesota child support laws work.  There is a new Minnesota child support law, because the old law was modified significantly in 2007.  Now, child support is calculated using the gross incomes of both parents.  But, that’s not the most significant change.  The most significant change is that the amount of child support one pays (or that one receives) depends upon parenting time.  In my opinion, this aspect of the law resulted in an unintended consequence that can prove fincially disastrous to some parents.

Now parties to a divorce proceeding tend to fight about parenting time, because under the new Minnesota child support statute, the amount of parenting time has a very significant economic impact.  And of course, it really doesn’t matter how much parenting time a parent actually exercises in “real life”–the only thing that matters is what the court order says. 

Here’s what I mean: suppose parent A has gross monthly income of $5,000.  Suppose parent B has gross monthly income of $3,000.  Suppose they have two children.  Suppose that, historically, parent B has done all of the actual parenting time.  Parent B gets the kids up in the morning and gets them off to school.  Parent B buys the kids clothing.  Parent B reads to the kids and tucks them into bed at night.  Parent B cooks the meals and does the cleaning.  And suppose that, for whatever reason, Parent A does not want to pay (much) child support.

Here’s the deal: if Parent A has the kind of parenting time that one would expect under these facts (between 25% and 35% of the time) then Parent A would pay child support to parent B in the amount of $921.  Parent A’s basic support obligation is actually $1,047 per month, but Parent A receives a “parenting expense” adjustment of $126 per month.  This seems fair enough.

But, assume that Parent A lobbies really hard for 45% parenting time.  And assume that Parent A manages to convice the court that this makes sense, even though historically Parent A has not been an equal parent.  With 45% parenting time, Parent A only has to pay $304 per month.  Parent A gets a parenting expense adjustment of $743.

Of coures, Parent A can often convince a court that Parent A should get at least 45% parenting time.  And, once 45% parenting time is awarded, Parent A’s child support obligation is established at $304 per month.  After that, Parent A can continue to be the same kind of parent that Parent A was before the divorce.  Parent A can call Parent B and say “I’m too busy to take care fo the kids–you take them.”  Parent A can do this as often as Parent A wants.  Of course, Parent B will take care of the kids because historically this is something that Parent B always has done.  And Parent A can refuse to pay for half of the kids expenses–half of their clothing, ice time if they play hockey, school lunches. 

It doesn’t take a legal genius to see that Parent B is at a financial disadvantage.

The problem with the new Minnesota child support statute is that it makes it easier for Parent A to avoid supporting the family after the divorce.  Now, I am not saying that all “Parent A”s are like this.  But, the new Minnesota child support statute is deficient because it makes too much rest upon the designation of the amount of parenting time.  It was intended to take the “fight” out of child support by making the amount of support a computer calculation that took into account gross income only.  However, all it did was shift the “fight” to a new terrain.  Now people fight about the designation of percentage of parenting time.

There are legal strategies that both Parent A and Parent B should follow when confronted with this situation.  If you want to know more, call Fiskum Law at (952) 270-7700.

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How Do I Find Assets In Minnesota Divorce Proceedings?

When you get divorced in Minnesota, the Court will divide marital assets and debts.  The statute requires that this be done “equitably.”  Equitably usually means “equally,” but not necessarily.  As long as the asset division is fairly equal, Court consider that to be close enough. 

Many people ask about how they can find assets that a spouse may be hiding.  There are several ways to do this.

First, I advise people to make copies of various documents.  Ideally, this should be done in the several months leading up to a divorce.  These documents include tax returns, paycheck stubs, check book ledgers, account statements, and credit card statements.  Often one can find relevant information about hidden assetes in these records.  For example, there may be a transfer made from a known account to an unknown account that is reflected on an account statement.  A tax return may contain an entry for earned interest that does not appear on any known account statements.

In Minnesota, the Rules of Civil Procedure apply to divorce proceedings.  The rules provide for something called “discovery,” which is the formal process of compelling an opposing party to provide information and documentation.  One can require the party to answer, under oath, written interrogatories (written questions) and these questions usually include questions about income, assets and debts.  One can require the party to respond to a request for production of documents, stating the type of documents sought.  The other side then has 30 days to produce copies of the documents.  One can also take the deposition of the opposing party, and one can take the deposition of anyone else who might have information that is relevant to the divorce.  One can take the deposition of a representative of a bank, for example, in order to obtain copies of bank statements or canceled checks.  Depending upon what information you need, there is probably a way to obtain it.

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Parenting Time for Unmarried Fathers

In Minnesota, an unmarried father has no parental rights unless these have been established by a court order.  The mother of the child has the common law right to physical and legal custody because she gave birth to her child.  When the mother is married to the father, then the father has common law physical and legal custody rights, too.  But, when the mother is not married to the father, the father has no legal rights to his child.  None.

This is true even when the father signs a Recognition of Parentage at the hospital and is named as the “father” on the child’s birth certificate.  It is also true even when the child has the father’s last name. 

The mother can go to court and get an order requiring the father to pay child support.  Even then, the father has no parental rights.   No court order, no parental rights for Dad.

In relationships where the mother and father get along, the fact that the father has no legal rights might not be a problem.  But, in a relationship where the mother and father do not get along, this can be a problem.  The father is not legally entitled to share in any kind of custody, and he is not legally entitled to parenting time. 

The only option for the father is to start a legal action to establish paternity and parental rights in court.  In Minnesota this is called a paternity suit.  The specifics of how to do this are going to depend on whether the father signed a Recognition of Parentage.  If he did, the case is pleaded one way.  If he did not, the case is pleaded another way.  The mother can also start a paternity suit.  This may be necessary if the mother wants child support and the father did not sign a Recognition of Parentage at the hospital.

I believe that it is important for both unmarried fathers and unmarried mothers to establish parental rights.  This is important, even when the mother and father get along.  In fact, it is much easier to do when the mother and father get along because a stipulation can be drafted and submitted to and approved by the court, with very minimal court inovlvement.

If there is a question about whether a particular unmarried man is the father of a child, then either the mother or father can request genetic DNA testing.  Generally, genetic DNA testing costs about $500 or so.  If the alleged father is not the real father, genetic DNA testing will prove this conclusively.  If the alleged father is the father, genetic DNA testing will indicate this, with a calculation showing that the odds of anyone else being the father are extraordinarily low (maybe 1 in 4 billion or so).

The law relating to unmarried parents is complex.  If you have questions about paternity in Minnesota, feel free to call Fiskum Law at (952) 270-7700.

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What is a Temporary Relief Hearing?

Often it can take several months to complete the divorce process.  If there are disputes about custody and parenting time, disputes about the value of assets, or disputes about how much alimony or spousal maintenance should be paid, it can take several months to resolve these.  In the meantime, the parties need to continue living their lives.

In Minnesota, a divorce court can enter a “temporary order” that is in effect until the divorce is concluded.  A temporary order can award temporary custody, temporary parenting time, temporary child support, temporary occupancy of the home, temporary spousal maintenance and it can contain other provisions. 

Generally, as soon as the divorce has been started, a spouse can bring a motion for temporary relief.  In some Minnesota counties, the motion can be heard within a few weeks.  In other counties, it takes longer because of the backlog of cases.

My opinion is that a hearing for temporary relief is very important and should be taken very seriously.  I believe that often the temporary order can have a precedential impact upon subsequent proceedings.  It can signal to the other side what they are likely to achieve if the case goes to trial and make them re-consider whether it is worth the financial and emotional cost.  A temporary order can influence other professionals who may be working on the case.  And, in my opinion, a temporary order can have an impact on how a judge views the case as it goes to trial.  (Keep in mind that in most counties, more than one judge can be involved in the same divorce case.)

For all of these reasons, an order for temporary relief is important.

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Holiday Parenting Time in MN

This is the time of year that many divorced parents begin to have problems with holiday parenting time.  Often times, divorce decrees are ambiguous about holiday parenting time.  A divorce decree might say that parenting time is “reasonable and liberal,” without saying anything about a specific parenting time schedule.  Or a divorce decree might say that the parents have “alternating holidays” with the children, without stating specific holidays and without stating specific pick up and drop off times.

Many parents are able to cooperate and reach an informal agreement about parenting time.  Many parents cannot.  If your ex-spouse is difficult to cooperate with, you should begin thinking about holiday parenting time now.  If the divorce decree is not specific about holiday parenting time and your ex-spouse is difficult to deal with, you should take the following steps:

1.  Try to get an agreement in writing.  This can include a series of e-mails back and forth that, when read together, confirm what you and your ex-spouse have agreed that the holiday parenting schedule will be.  You can initiate this process by sending a written proposal by e-mail, asking that your ex-spouse either approve it or propose some reasonable changes.  Eventually, many, if not most, parents can reach an agreement this way.  The important thing is to have an agreement that is evidenced by a series of e-mails or other written form of communication.

2.  If you cannot reach an agreement, you should propose in writing that you and your spouse obtain the services of a parenting time consultant.  A parenting time consultant is a professional (usually a psychologist or an attorney) who will meet with you and your ex-spouse and try to work out a parenting time agreement.  You have to pay for a parenting time consultant.  It is important that you at least try to get your ex-spouse to go to a parenting time consultant, because if you cannot, the court will want to know this.

In my experience, either step 1 or steps 1 and 2 above usually work.

3.  If steps 1 and 2 above do not work, you probably need to return to court.  Depending upon the circumstances of your divorce, this could possibly be done without a formal hearing. Or, a formal hearing might be required.  An experienced attorney might be able to resolve the issue in a telephone conference call with the judge and the attorney for your ex-spouse.  Or, the attorney may need to schedule a brief court appearance.

Keep in mind that if you can show that you tried to act reasonably, that you sent a written request for a reasonable holiday parenting time schedule (I emphasize the word reasonable– you need to be fair) and that your ex-spouse declined, and that you then offered to try to resolve the matter out of court with a parenting time consultant, you have a reasonable claim for your attorney’s fees incurred in connection with the court appearance.

In Minnesota, attorney’s fees can be awarded to one spouse when the other spouse unreasonably contributes to the length or expense of a proceeding.  This does not mean that attorney’s fees are always awarded, but the possibility that this can occur gives you some leverage in negotiating with your spouse.

As always, the law when applied to the specific facts of your situation can produce a different result.  This blog is not intended as legal advice.  It is best to consult with an attorney by telephone or in person to obtain a specific analysis of the law as it applies to your facts.

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Do Divorce Attorneys Use Negotiating “Tricks”?

Do divorce attorneys use negotiating tricks?  Yes. Not all of them, but a lot of them. After all, they went to law school, they are attorneys, and they want to get the best deal for their client in any (legal) way they can.

Many attorneys who use “positional bargaining” tactics use various “tricks” to try to get their way. The problem is, if the other attorney has some negotiating skill and savvy, these tricks do not work very well.

For example, a well-known ploy is the “one more thing” trick. Imagine that you and your attorney have been in intense negotiations with your spouse and your spouse’s attorney for several hours. You’ve finally hammered out what appears to be a reasonable agreement. As you are just about ready to close the deal, your spouses attorney says “Oh, we want one more thing.”

That “one more thing” can be anything. It could be that your spouse wants “a little more” parenting time. It could be that he or she wants “a little more” money for alimony or child support. It could be that he or she wants the brand new 80 inch plasma TV that you just purchased with your bonus.

In extreme cases, I have seen attorneys and their clients renege on signing a Marital Termination Agreement after it has been fully written up, and even though it accurately reflects the terms of the agreement that the parties reached in mediation. The other side wants “one more thing.” This kind of comportment can be considered to be unethical, and it certainly shows bad faith, but that does not stop attorneys from engaging in it.

Your spouse’s attorney knows that you have just spent a lot of time and effort to get to an agreement. The attorney knows that you have a lot invested in the negotiating process. The attorney knows that you have an emotional interest in getting done with the divorce and avoiding trial. The attorney believes that, instead of looking at the total balance sheet with the “one more thing” added and realizing that it is now unfair, you will just say “okay, I give up–take one more thing.”

You do not have to say this. You can evaluate the “one more thing” and decide how important that issue is to you. Usually its important to you and your spouse knows this, which is why it was held up as “one more thing,” for him or her to grab at the end of the negotiations. If your attorney is experienced, he or she will have held something in reserve. Often, this is not so much the “one more thing” that you want as it is the possibility of proceeding with the process if negotiations fail. Or, your attorney will know how to say “No” in a way that communicates to your spouse that if he or she insists on getting “one more thing” it will end up costing her more than it is worth.

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How Does Divorce Mediation Work In Minnesota?

Mediation is a process in which the parties to a divorce and their attorneys meet with a neutral third party in an attempt to resolve their disagreements, without going to trial.  The neutral third party should be a trained mediator.  Usually she is a divorce attorney or other professional who has experience with divorces, along with training in how to mediate disputes.

My opinion is that mediation is a good thing.  While there are exceptions, it is usually better for parties to resolve their differences through negotiation than it is for the government to make the decision for them.  (That’s what happens when a case goes to trial–the government, a judge, decides the disputed issues.)

It is also true that sometimes trials are necessary.  But, even in those cases, when it becomes apparent to the other side that you are ready and willing to go to trial, they other side agrees to meet you half way.

Mediation is not the best first step to take because it is expensive.  The best first step is to see whether the attorneys and parties can resolve the issues on their own, taking into account what each party wants, and what each party can reasonably expect, given the law as it applies to the facts of their case.  But, if that does not work, mediation then makes a lot of sense.

In Hennepin County and a few other counties in Minnesota, there is a process called “Early Neutral Evaluation” and one called “Financial Early Neutral Evaluation.”  In these processes, the court refers the parties to neutral evaluators who try to help the parties reach an agreement.  If the parties cannot agree, the neutral evaluators tell the parties what they perceive as the strengths and weaknesses of their respective cases.  Early Neutral Evaluation is used for custody and parenting time disagreements.  Financial Early Neutral Evaluation is used for financial disputes–disputes about things like alimony, child support, division of assets and division of debts.

This is just an overview of the process.  It is actually quite a bit more complex.  Getting good results in mediation requires that one be prepared before hand with the facts, and that one have an attorney who has a good sense of diplomacy and good negotiating skills.  As always, if you have questions about this or other Minnesota divorce issues, you can call Fiskum Law at (952) 270-7700.

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What About “Flat Fee” Divorces?

Generally speaking, many of the so-called “flat fee” divorce offers from attorneys or para-legal services are scams.  Offering to do a job for a flat fee, especially when the process has not even started, is a lot like saying “You can hire me to fill out the forms for you, but if there are any problems you have to pay me more.”

The fact is, divorce forms are available on-line.  You can get some good ones here: http://www.mncourts.gov.  Just click on the link on the left-hand side of the page that says “court forms” and follow it until you get to the page that has divorce forms.  These forms are free.  You should not pay anyone for forms, especially online.  The chances are very good that forms that you pay for online will not work in Minnesota.  On the other hand, the forms made available by the Minnesota Supreme Court are free, and they will work in Minnesota.  Attorneys who offer reduced rates and “flat-fee” specials do not want you to know about these forms, which again, are available for free.

The fact is, when people hire me, they hire me for my legal advice.  My legal advice saves my clients lots of money and it prevent lots of problems.  People do not hire me to fill out a form.  And really, when you hire an attorney for a reduced rate for a so-called “uncontested divorce,” that’s usually all the attorney does.   Do you think they would charge you a flat rate so they can do more work for you?  Or do you think they charge a flat rate so they can do less work?  These are not difficult questions.

Be especially wary of scams that advertise an “uncontested divorce” for $99 or some bargain rate.  In Minnnesota, the court filing fee (the fee you pay to file your Petition and other documents with the court) is $400.  (In some counties this filing fee is slightly higher.)  The fee to bring a motion for temporary relief is another $100.  The fee to fax a document to the court is $25.  You do not need a degree in mathmatics to realize that when someone advertises a $99 divorce, the math does not work.

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Does It Matter Who Starts the Divorce Proceeding?

A skilled divorce attorney understands the concept of “perceived credility.”  Maximizing the effect of “perceived credibility” for a client is one of the most important things an attorney does.

Often I am asked whether it makes any difference who initiates the divorce proceeding.  My own opinion is that, often times, who goes first does matter.  This has to do with what many attorneys call the “halo effect.”  I call it “perceived credibility.”

In addition to the “facts,” human beings make decisions based on a variety of factors, including various biases, preconceived ideas, emotion and, importantly, perceived credibility.  In contested divorce cases, parties often appear in court early in the process to request an order for temporary relief.  That is, one or the other party brings a formal motion or request for a temporary order that will remain in place during the several months that the divorce proceeding is pending.  A temporary order can award temporary custody and parenting time to one of the parties.  It can award temporary child support, temporary alimony (alimony is called “spousal maintenance” in Minnesota divorce courts) temporary occupancy of the home, and it can grant other provisions.  These provisions can remain in effect for a month or six months or longer, until the divorce process is concluded.  For obvious reasons, presenting a compelling case at a temporary relief hearing is very important.

In Minnesota, a hearing for a temporary order is brief, typically lasting no more than 15 or 20 minutes.  Prior to the hearing the attorneys submit formal written requests for relief (motions) and formal statements of facts signed by their client and other people (affidavits).  Usually the judicial officer will have read the motions and affidavits (the pleadings) submitted by the parties prior to the hearing.  Sometimes they do not, and sometimes they say this at the hearing itself. 

So, a judicial officer, who may or may not have reviewed the written pleadings, will have two parties and their attorneys appear before him or her for a few minutes, and then make a decision that could have a life altering impact for one or both parties.   Many people believe that there is a “halo effect” that postively impacts the person who starts the divorce action and who brings a formal motion for temporary relief.  In fact, logicians have identified a particular kind of logical fallacy which they call “poisioning the well.”  This means that the person who gets to the decision maker first with his or her story tends to have a bit more credibility.

Many human beings make decisions from their “gut,” and then justify them with legal rationales later.   Effective divorce advocacy requires an understanding of how human beings make decisions.   It is a process of presenting the best facts and best legal argument, based on the facts.  And, in order to maximize the potential for success, attention to perceived credibility is essential.

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When Should I Tell My Spouse?

One question I am often asked is when a spouse should discuss his or her intention to divorce with the other spouse.  My response is usually that “it depends.” 

It is important for couples to try to cooperate during and after the divorce process, especially if they have children.  My experience is that most couples can do this.  Divorce is always an unpleasant experience.  If spouses can cooperate before, during and after the process, everyone will benefit.

If you can sit down with your spouse and discuss in general terms your expectations regarding the divorce, this is good.  You should not reach a complete agreement without consulting with an attorney however, because an unknowledgable spouse can make concessions that he or she would not have to make.  You cannot bargain fairly and effectively for your rights if you do not know what they are.

The law relating to divorce and the division of assets and debts is complex.  There are nuances to dividing property, retirement, and importantly, debts that most non-lawyers do not know.  Before reaching a final agreement, even if it is a “rough draft” agreement, you should talk with an attorney.  Its hard to negotiate for changes to an agreement once you have told a spouse that you will agree to something.

Generally, I tell people that it is okay to discuss a divorce with a spouse after they have consulted with an attorney an have an idea of what their rights are.  However, there are marriages in which couples cannot communicate fairly or effectively.  Often in these kinds of marriages, one should consider starting the formal divorce proceeding first and then discuss the outcome one would like to see.

There are marriages in which one spouse has a narcissistic personality disorder and, no matter what, insists on having his or her way.  There are marriages in which one spouse is a bully.  There are marriages in which one spouse is the victim of domestic abuse.  In these instances, talking beforehand about your expectations is seldom helpful and usually leads to conflict.  The conflict can be better managed if you are working with an attorney.

I am going to write about domestic abuse in greater detail in a future blog entry.  For now, I will just say that if you have been the victim of domestic abuse, you should seek the help of an attorney or other professional.  If your spouse strikes you or threatens to strike you, you should call 911 immediately.  You should also apply for a Domestic Abuse Order for Protection in the district court for the county where you live.

Domestic abuse includes actual physical violence, but it also includes assault (where no contact occurs) and threats of violence.  Sometimes people have difficulty admitting to themselves that their spouse is a domestic abuser.  But, violence is a crime, and one does not get a free pass just because he is married to the person he commits violence against.  More on this subject later.

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How to Prepare for Divorce

There are several important steps you should take when preparing for divorce. Ideally, you should take these steps before the divorce proceeding actually begins. These steps will save you money and will position you to achieve a more favorable outcome.  Its part of strategic divorce planning.

I will discuss various aspects of preparation in subsequent posts. In this post, I will talk about obtaining and safely storing financial records.

Usually one spouse has more responsibility for keeping and maintaining family financial records. If you are the spouse who does not do this, you could be at a disadvantage when it comes to divorce.   Before the divorce proceeding starts, you should obtain copies of the following kinds of documents:

1. Checking account records, including the checkbook ledgers, checking account statements, and canceled checks or check carbons;

2. Federal and state income tax returns for the past several years, plus all attachments and schedules, and all of the information that was used to prepare the returns;

3. Paycheck stubs, bonus check stubs, and year end W2 and 1099 statements;

4. Credit card statements;

5. Cell phone bills;

6. The deed or title to your homestead and any other real property and sale closing documents;

7. Receipts relating to the purchase of big-ticket items;

8. Loan statements;

9. Any other financial documents that might be important.

During a Minnesota divorce proceeding, there is a formal, legal way that an attorney can obtain copies of these documents. Its called “Discovery.” I will write more about that later.

There are two problems with discovery: 1. it can be expensive; and 2. its often difficult to get copies of documents that the other side has already destroyed. Some documents can be obtained directly from a third party. An example of this is a summary of your tax return, which can be obtained from the IRS. Some documents cannot be obtained from any source.  For example, a check book ledger is a good source of financial information, but once a spouse has destroyed it, its gone.

You should not obtain documents illegally. But, most couples keep their financial records in a place that is accessible to both parties. 

Even if you are not expecting a problem divorce, you should get copies of these documents.  Things change, and when an otherwise agreeable spouse realizes that you want (and are entitled to) a portion of his or her retirement savings, he or she might become less agreeable.  Put copies of these documents in a box and store them somewhere that your spouse cannot get at them. Maybe store them in the basement of your best friend’s house, so that you have them when you or your attorney needs them. Store them at your parent’s house or in a safe place where you work. Put them somewhere that your spouse cannot get at them and destroy them.

This simple step will save you time and money.

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What is an “Uncontested Divorce”?

An uncontested divorce is a divorce proceeding in which the parties agree on how to resolve all issues.  Instead of having a trial before a judge, the parties sign a written agreement. In Minnesota, this agreement is called a “Marital Termination Agreement.” Sometimes parties can reach an agreement right away. Sometimes parties may start out with a significant disagreement about one or more disputed issues, and these issues are resolved during the negotiation process.

Disputed issues can include child custody, child parenting time, the amount of child support that is paid, whether spousal maintenance (alimony) is paid to a spouse, which spouse gets the house, which spouse pays the debt, how the retirement assets should be divided, and there are many others.

It is important to realize that just because there are disputed issues at the beginning of the divorce process, this does not mean that eventually there will be a trial before a judge. There are several ways of resolving disputes and reaching a fair agreement, including negotiations between the attorneys, mediation with a neutral third party, valuations by a neutral expert, and recommendations by a qualified neutral.

As a Minnesota divorce attorney who has been practicing for more than 17 years, my experience is that even in a situation where parties have an agreement, it is helpful to have a skilled attorney involved. An attorney is usually aware of issues that an unrepresented party is not. More importantly, an attorney can negotiate more effectively for a person than that person can for himself or herself.

In future blog entrys, I am going to discuss contested divorces and uncontested divorces at greater length. In the meantime, you should feel free to call me or e-mail me with questions or concerns. You can call me at (952) 270-7700 and you can e-mail me at dan@fiskumlaw.com.

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