Should YOU Make the First Move?

Often, people who know a divorce is coming ask me whether they should file first, or whether they should let their spouse file first.  My answer is “It depends.”

If the divorce is non-contested, if you and your spouse get along well and you know with certainty that you will reach an amicable, peaceful agreement without the input of court-appointed evaluators or a judge, then it probably does not make any difference who files first. In that case though, you need to ask yourself why you are getting divorced in the first place.

But, if you think that there might be a significant disagreement about custody, parenting time, or spousal support, you should probably file first.  There are several reasons for this.  One reason is credibility.  Another reason is that you get to determine when the “snapshot” of relevant facts occurs.  Both of these are important in divorce litigation.

Say, for example, that your spouse wants to get you out of the house promptly.  Ordinarily, this can be difficult to do in a divorce proceeding.  And, maybe you do not want to move.  Maybe you are expecting that the house will be awarded to you.

Well, your spouse can make up false claims of abuse.  He or she can embellish a description of a normal argument to make you sound threatening and abusive.  If you have already served and filed a divorce petition, this embellishment will most likely look like a reaction to what you have done.  In other words, it is more likely to be seen as positioning, and discounted.

What about the “snapshot” of the facts.  Well, if your spouse does not do very much to help out with the kids, but he or she knows that the divorce is coming in the future, he or she will try to do things to make it look like she is a more caring parenting than he or she is in reality.  He or she will start taking the kids to the doctor, to school, to daycare, and generally try to look like a Super Parent.

This isn’t necessarily a bad thing.  The problem is that if it is positioning for a divorce proceeding, it generally does not last after the divorce is final.  This is where a snapshot of facts is a handy point of reference.  If you start the divorce proceeding sooner, the spouse has less time to create the Super Parent facade.

Of course, you should only start a divorce proceeding when you are ready, and when you are certain that there is no hope for saving the marriage.  Postponing this decision does entail some risk, and you need to weigh the risk against the benefits and make a decision.  Ultimately, you are the only person who can make this decision.

For a free divorce case analysis, call Minnetonka attorney Daniel Fiskum at (952) 270-7700.

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Divorce and Drug Addiction

Occasionally someone contacts me about divorcing a spouse who is abusing alcohol or drugs.  They would like to keep the proceeding “amicable,” but at the same time they are concerned that their spouse might receive inappropriate parenting time, meaning that their child might be left alone with a drug-using or actively-alcoholic spouse.  They are concerned that if they make an “issue” of the spouse’s drug or alcohol use, that will make the spouse less likely to cooperate during the divorce process.

In my 20 years of experience as a divorce lawyer, I have learned that there is usually just one way to deal with a spouse who uses drugs, and that is to make an issue of it from the very beginning.  There are several reasons for this.

First, its pretty much impossible to negotiate fairly and reasonably with an active drug user or alcoholic.  Addicted persons can be manipulative and disingenuous.  You might engage in wishful thinking, hoping that “just once” the addicted person can have a moment of clarity and agree that, for example, you should get sole custody of the children and that he or she should get supervised parenting time until they have been through treatment and sobered up.  But when it comes to divorce and protecting your children, wishful thinking is not the best approach.  It probably has not worked for you before because if it had you would not be getting divorced.  There is no reason that it will start working now.   Its nothing more than your own form of denial.

But there is another reason to make a spouse’s drug use an issue from the start – your credibility.  Its important and its the only thing you can rely on to get you through a difficult divorce proceeding.

Here’s what I mean: If you don’t mention the spouse’s drug use, if you just present pleadings to the court that say that there has been an irretrievable breakdown of the marriage, that you want to get divorced, and that you want sole custody of the children, the court will not understand the underlying problem.  Then, if your spouse can “clean up” for a while, he or she will file responsive pleadings stating that he or she wants joint custody, unsupervised parenting time, etc.

If you wait until then to mention the spouse’s drug use, the court might think you are making it up.  After all, if it was an important issue, you would have said something about it with your first pleadings.  You lose credibility.

And, people who abuse drugs and alcohol are experts at denial.  They can look very believable and a judge, who may spend all of 10 minutes interacting with you and your spouse early in the proceeding, might be fooled.  By not mentioning the drug use problem you make it easier for your spouse to fool the judge.  Lying and denial come very easy to addicts.  Many of them do not even know they are doing it because it has become second nature.

Your best defense against this is your own credibility.  You keep this by being completely truthful and honest about the situation from the very beginning, and by not wavering in your expression of concern about the welfare of your children when they are in the care of a spouse who is a drug addict or an alcoholic.

I understand that this is not easy.  Divorce is a difficult and painful process.  Many people experience anxiety and fear when faced with a decision about getting divorced.  I cannot help with all of these issues, but I can help with the process of getting divorced and dealing with a spouse who abuses drugs or alcohol.


Minnesota Divorce in 2011

My recent blog post on the future of divorce in Minnesota has received a lot of attention.  I am hopeful that the folks at the Minnesota state legislature understand the severe economic pressure that the Minnesota court system is under.  While I like to remain apolitical in this blog, it is nonetheless true that the divorce court system provides a significant and important service to the citizens of Minnesota.  Regardless of how prolonged and contested divorce proceeding can become, it is better than self-help.  It is important that the Minnesota legislature provide adequate funding for the Minnesota judicial branch.

Having said that, there are ways that people can reduce the costs they incur in connection with their divorce proceeding.  First, the parties should take a personal “inventory,” and ask whether they want to spend the next year or so of their life fighting about their personal issues in public, in divorce court. If the answer to that question is “No,” then the parties  should identify the kinds of issues that they may be able to reach a compromise on.  Then, they should try to reach a compromise.  A compromise on some of the issues is better than no compromise at all.

Sometimes parties cannot reach a fair compromise because one of the parties has a personality disorder.  Narcissistic Personality Disorder and Borderline Personality Disorder are examples of personality disorders that are very difficult for the other spouse to deal with in the context of a divorce proceeding.  I also understand that some issues may not be amenable to compromise, even if both parties are comporting themselves rationally.  That’s why they have judges.  But, if parties can limit the range of issues that a judge has to decide, that streamlines the process and results in cost savings.

It is important that parties retain certain basic financial records that can help in dividing assets.  These records include recent state and federal income tax returns, recent paycheck stubs, year-end account statements for retirement accounts and investment accounts, and records relating to the purchase of a homestead or other significant item of real estate or personal property.  If these kinds of records can be exchanged at the time that the proceeding is started, this will result in a significant cost savings.

When I meet with a client for a free divorce case analysis, I provide the client with a comprehensive list of documents that I may need to review if I agree to represent the client.  I suspect that other attorneys do the same, so when you have an initial case analysis meeting with an attorney, be sure to ask him or her for a copy of the list.

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Plymouth MN Divorce Guru

Often I am asked about the circumstances under which a divorced parent can modify the parenting time arrangement that they have with their ex-spouse.  Modification can be needed for a variety of reasons – people change  jobs, children get older and get involved in more extra-curricular activities, people have either more time or less time to parent.  If the parties agree, modification is very easy.  The parties simply sign and submit a proposed Order to the court.

But as we all know, the reason divorce lawyers exist is that people often cannot agree.

So, generally speaking, in order to modify parenting time the person seeking the modification needs to show that the modification would serve the child’s best interests.  Note that I am talking about modification of parenting time, not modification of physical custody or legal custody.   In order to modify physical custody or legal custody, the person seeking the modification usually has to show that the child is endangered by the current arrangement.   Not so with parenting time. All that is necessary is a showing that it would be better for the child if parenting time were modified.

Unless there is an emergency, or unless one parent consistently and willfully interferes with parenting time, a person cannot seek modification of parenting time until one (1) year has elapsed since entry of the divorce Judgment and Decree.   The statute pertaining to modification of parenting time is Minn. Stat. 518.18 (read it here:  However, if there has been a previous, post-decree motion to modify parenting time, then one has to wait for two (2) years to bring a motion to modify (except in the case of an emergency or persistent, willful denial of parenting time).

So, how do you make the case?  You have to clearly express reasons, that will appear credible to a judge or referee, why the child will be better off with the modified schedule.  You have to put these reasons in writing, in a document called an “Affidavit.”

Can you do this yourself?  Yes.  Can you do a good job?  Maybe, but unless you are a divorce lawyer, probably not.  Think of it this way – anyone can sit down at a piano and play “Chopsticks.”  Very few people can sit down at a piano and play a Beethoven piano sonata.  You need to tell a story.  You need to make the children and their problem with the current parenting time arrangement real to the court.  You need to sound reasonable, credible, and “normal.”  If you paint your ex-spouse as the Joseph Stalin, the court is probably not going to believe you.  Arguments ad hominem usually do not work. But, if you say something like: here are the issues, here is how these issues impact our children, and here is a solution that improves the situation of our children, the court will listen.

If you have questions about this, feel free to call me at (952) 270-7700.

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