MN Family Law in 2012

I believe that in 2012, Minnesota Family Law will continue on a trend towards private resolution of divorce cases.  In large part, this is dictated by the current legislative attitude towards raising revenue and funding services, specifically funding the Minnesota district court system.  A few years ago, the Chief Justice of the Minnesota Supreme Court gave a candid and forthright interview in which he described the financial crisis that the Minnesota courts were in at that time.  Well folks, it hasn’t gotten any better.

So, what does private divorce case resolution look like?  Well, first, you have to pay for it.  Whether you hire a private mediator, a financial or custody Early Neutral Evaluator, a private arbitrator, or a consensual special magistrate, you – the person getting divorced – have to pay for it.

Mediation is a process where the parties and attorneys meet with a mediator in an effort to negotiate a resolution to their disputes.  While mediation is often required by the court, you cannot be “forced” to settle a case on terms you do not like.  In other words, while participation in mediation is often mandatory, settling a case in mediation is voluntary.  If you do not like the final offer of the other side, you can walk away from mediation and go to trial.  Mediation is confidential, and if you do not settle the case, the divorce judge is not allowed to know what it is that you talked about.

The Early Neutral Evaluation (ENE) process is similar to mediation.  Many counties offer Early Neutral Evaluation for both custody and financial issues.  The primary difference between mediation and ENE is that in the course of the ENE process, the evaluator will give the court an opinion about how a judge would decide the case, if the case went to trial.  The purpose of this is to give both parties an unbiased insight into their facts and legal issues, in an effort to prevent continued litigation.  Counties in the metropolitan Twin Cities area offer an ENE process.  These include Hennepin, Ramsey, Anoka, Wright, Sherburne, Washington, and some others.  I have some problems with the ENE process.  Often, the persons giving the evaluation are not licensed attorneys.  It is illegal for a non-licensed attorney to apply a legal analysis to a fact situation.  That is called “practicing law without a license.”  But, the courts do not seem to mind.

An arbitrator or consensual special magistrate functions like a privately-paid judge.  Unlike mediation, you cannot be required to participate in arbitration.  It is voluntary.  An arbitrator is an attorney, not a judge.  If you hire an arbitrator, he or she will conduct a trial and decide the disputed issues, just like a judge does.  The benefit is that you can usually resolve a case through arbitration much more quickly than you can if your case goes to trial before a judge.

Hennepin County offers something called a mediated settlement conference.  As far as I know, Hennepin County is the only Minnesota county that authorizes this in divorce cases.  Participation is voluntary.  Essentially, the parties meet at the courthouse for a settlement conference.  The settlement conference is mediated by a private mediator.  The judge presiding over the case is also available to give an opinion on disputed issues.  This is sort of like getting the judge’s opinion, without actually going to trial.

Many judges will informally offer an opinion on disputed issues, directly or indirectly, whether the parties or attorneys ask for it.  Technically, judges are not supposed to do this and are supposed to remain “ignorant” of the facts until the trial begins.  But, in the context of a mediated settlement conference, the judge is free to give his or her opinion.

I believe that there is a problem with arbitration, consensual special magistrates, and mediated settlement conferences.  The problem is that in the Twin Cities, the system is too inbred.  Historically, there has been an imaginary wall between judges and lawyers.  This is as it should be.  It is not good for judges and lawyers to be too familiar with each other because subtle and unconscious biases and find their way into the judicial decision making process.

However, lawyers do hang out with other lawyers.  Lawyers refer cases to each other, they work on committees together, they form friendships and get together for drinks after work.  If you are a lawyer in a small shop, it is a bad thing when the lawyer you hire to decide your case has a continued financial interest in selling his services as mediator, in the future, to the larger firm you are up against.  That pecuniary interest will color his or her decision making process.  Psychologists have studied unconscious biases similar to this extensively.  It is a legitimate concern.

Lawyers and judges should be concerned both with actual, real bias, and also with the appearance of bias.  In order for our legal system to work effectively, people have to believe in it.  If they begin to lose their belief that our legal system operates in a manner that is unbiased, our legal system will begin to lose credibility.

I am aware of a circumstance in a metro-area county in which a law firm first acted as an early neutral evaluator on a case.  Then, later on a post-decree matter, the same law firm became involved as attorney for one of the parties.

I am aware of a case in which an early neutral evaluator worked on a case as a neutral, when one of the attorneys was also the evaluator’s attorney in his own divorce case.

In my view, the answer to this problem is twofold.  First, I believe the legislature needs to provide sufficient and adequate funding for the Minnesota district court system.  Presently, it does not.

Secondly, I believe that the court rules need to be modified so that there is more regulation of people who serve as arbitrators, consensual special magistrates and early neutral evaluators.  If a person is going to “act” like a judge, he or she needs to be held to the same ethical standard as a judge.  There are clear rules that govern judges and referees.  There are clear rules that govern lawyers.  There needs to be a set of rules that govern mediators, arbitrators, early neutral evaluators, and consensual special magistrates.  Persons in this class should be required to make full disclosure of their relationships with both law firms involved in the case.  This includes pending cases in which they are serving as attorneys for one party, and pending cases in which they are being paid by the law firm to work as mediator or arbitrator.

MN Divorce Petition

A Minnesota divorce proceeding is started by the service of a Summons and Petition for Dissolution of Marriage.  “Service” means that the documents (the Summons and Petition) need to be personally handed to the recipient by someone other than his or her spouse.

A Summons is a document that in effect gives the district court jurisdiction over the recipient.  In Minnesota divorce proceedings, the Summons will state that the recipient has 30 days in which to serve an Answer to the Petition.  (Note: in other civil lawsuits, the recipient of the Summons typically has 20 days to Answer.  This is true of paternity suits, which fall under the civil lawsuit rules and not the divorce rules.)

If the recipient of the Summons and Petition does not serve an Answer, or otherwise appear, within 30 days after service, he or she is in default.  This means that the initiating party can approach the court for relief without any further notice to the party receiving service of process.

In Minnesota, a divorce petition contains very general information about the parties and the marriage–names, birth dates, addresses, names of children, information about employment, assets, etc.  The Minnesota divorce petition also includes a very general prayer for relief.  A “prayer for relief” is a statement of the various things the Petitioner would like the court to do: end the marriage, award child custody and child support, award spousal maintenance (or not), divide property, etc.

Unlike most states, and unlike the federal system, in Minnesota, civil lawsuits (including divorces) are started by service of process, not by filing pleadings with the court administrator.  Often, an attorney will start a lawsuit by service of process, but refrain from filing the pleadings with the court administrator, to see whether the case can first be resolved through negotiations.  This is called “pocket filing.”

Generally, pocket filing is a good practice because it can lead to settlements.  However, when cases are settled quickly, this often means that only one party actually needs to pay the court filing fee.  (In most Minnesota counties, the court filing fee for each party is $400.)  Because the court system is so severely underfunded, there is discussion about doing away with pocket filing and requiring each party to pay the court filing fee.

If you have been served with a divorce Summons and Petition in Minnesota, don’t mess around.  You need to serve an Answer within 30 days.  Or, you need to obtain a written extension of time to serve an Answer from the attorney representing the Petitioner.  If you do not do either of these things, you will lose.  You should not wait until the last minute to hire an attorney.  While preparation of the Answer may only take an hour or two, most attorneys are busy and need time to fit the work into their calendars.

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The Divorce System In Minnesota

One of the problems with the divorce process in Minnesota is that procedures vary greatly from county to county.  This should be corrected by the Minnesota legislature.

Historically, the model for the divorce process in Minnesota was the “litigation” model.  In other words, divorce was treated like any other lawsuit.  Motions for temporary relief were very common, and both parties were  subject to the rules of discovery.  The litigation model works well for businesses like IBM, 3M, Medtronics, and other large corporations with unlimited funds to pay attorneys, but it does not work well for the average couple who need to get divorced.

In some counties, the litigation model is being replaced with a mediation model.  In Hennepin and Anoka counties, for example, there is an Early Neutral Evaluation program that funnels parties to either custody mediators or financial mediators.  During this time, the parties are not allowed to conduct discovery.  (A lot of practicing lawyers do not know this, but there is a standing order in Hennepin County, signed by Judge Swenson, that prohibits service of formal discovery until after the Initial Case Management Conference.)

The problem is that within Minnesota, there is no uniformity from county to county.  There should be.  My personal opinion is that it is proceduarlly unfair for people in one county to be treated differently under the law than people in another county.  Among other things, the variance in procedures creates a “home town” advantage for the lawyer who’s office is located across the street from the county courthouse.   Another problem is that there is not necessarily a reliable source of information for the attorneys or the parties on how best to proceed.  

Minnesota would benefit from a uniform divorce procedure.  The Minnesota legilature should take this issue up the next time it convenes.

How Long Do I Need to be in Minnesota?

People occasionally ask me how long they need to reside in Minnesota before they can file for divorce in Minnesota.  The answer is 180 days (which is six months).  You have to have resided in Minnesota for six months before you can file for divorce here.  If you have moved to Minnesota from another state, that state will have jurisdiction over your marriage and divorce proceeding, until you have been in Minnesota for six months.  This is a jurisdictional issue and I am not aware of any way to circumvent it.

Six months is also the magic number for child custody proceedings.  Under the Uniform Child Custody Jurisidiction Act, a child’s “home state” is the state in which a custody proceeding should take place.  Under the act, a child’s “home state” is defined as the state that the child has resided in for six months.  If you lived in Florida with your children and moved to Minnesota, Minnesota will not have jurisdiciton to enter an original custody and paernting time order, or to modify a custody and parenting time order, until you and the child have been in Minnesota for six months.

Minnesota will not have the legal authority to award spousal maintnenance unless the obligor (that is the sp0use who will pay the spousal maintenance) has some connection to Minnesota.  If you moved here from Missouri but your spouse stayed in Missouri, and if he or she has no connections to Minnesota, then even though you can get divorced in Minnesota, the issue of spousal maintenance will be reserved so that it can be pursued in the State of Missouri.

Child support is treated somewhat differently.  If you moved here from Missouri, for example, and brought the kids, and your spouse remained in Missouri, you can get an order for child support working in Minnesota.  Technically, the support order will come from a Missouri court, applying Missouri law to the child support obligor’s situation.  The county attorney’s office from the county in which you reside can work with the county attorney’s office in the foreign state to obtain a court order from the proper court in the foreign state.

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