Divorce and the Early Neutral Evaluation Process

Most counties in Minnesota offer something called Early Neutral Evaluation (also known as “ENE”).  There is an ENE process for custody and parenting time issues, and an ENE process for financial issues.

Early Neutral Evaluation is similar to mediation, but there are major differences.  At an ENE, each party spends a half hour or more talking about the issues from his or her perspective.  If it is a custody and parenting time ENE, the parties talk about the children and the arrangements they believe will be in the children’s best interests.  If its a financial ENE, the parties talk about their finances and how they believe the finances should be addressed.

Then the evaluators take a break, they confer privately, and return in about 15 to 20 minutes.  The evaluators will have specific recommendations.  The recommendations are confidential, meaning they cannot be repeated to the court.  The purpose of the recommendations is to provide the parties with a view of what is likely to happen if the case went to trial.  Often, equipped with that knowledge, the parties can then reach an agreement.

After providing an evaluation, the evaluators then switch to settlement mode to see whether they can help mediate a final agreement.  Sometimes the process is reversed.  Sometimes the evaluators try to reach a settlement first, and then provide their recommendations later.  This depends on the approach of the particular evaluator.

The evaluators are on a list of court neutrals and are appointed by the court. In Hennepin County, the custody and parenting time evaluators work for court services and their offices are on the second floor of the Hennepin County Family Justice Center.

It is extremely important that your attorney prepare you carefully for an ENE.  You need to know not only “what” to say, but “how” to say it so that you do not alienate the evaluators.

If you have questions about this, feel free to call attorney Daniel M. Fiskum, at Minnetonka Family Law.  The number is (952) 270-7700.  Daniel M. Fiskum has practiced divorce and family law for over 25 years.  His office is conveniently located in the Carlson Towers at the intersection of I 494 and I 394.

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Holiday Parenting Time in MN

If your Minnesota divorce decree is not specific enough about parenting time and holiday parenting time, I can fix it.  Sometimes problems develop after a couple is divorced.  There are disagreements about parenting time, for example, that were not contemplated at the time the divorce occurred.  If this describes your situation I can help you.

In Minnesota, the term “visitation” has mostly been replaced by the term “parenting time.”  So, if you are googling information about visitation, you should also try googling the phrase “parenting time.”

In Minnesota, when couples divorce, usually the divorce decree or court order has a provision relating to parenting time.  This can be very unspecific, and for example, it can say that parenting time is “reasonable and liberal.”  This phrase assumes that the divorce couple can cooperate without a specific set of rules to follow.

Other times, the divorce decree will provide a parenting time schedule.  For example, it can say that parenting time is every other weekend, from Friday after school through Sunday at 6:00 p.m, an overnight every Wednesday, and alternating holidays.  Or, the divorce decree can be even more specific, allocating specific holidays to each parent, with details including the pick up and drop off times and locations.

If you and your ex have problems with holiday parenting times, you need to resolve this now, before the holidays have actually arrived.  If you contact my office at 1:00 p.m. on Christmas Eve asking for help, its really too late for me to have a meaningful impact on your situation.

If you and your ex have chronic disagreements about parenting time, often I will take steps to amend the current divorce decree to either clarify the schedule, and sometimes I include language that appoints a Parenting Consultant.  A Parenting Consultant is a neutral professional who has the legal authority to resolve parenting time disputes, award make-up parenting time, and generally be available as a resource.  By Minnesota statute,a Parenting Consultant (also known as a PC in Minnesota) can have either a lot of authority, or not as much authority, depending upon what the court orders.

At Fiskum Law Office, P.A., we can amend your divorce decree after you have already been divorced, so that it addresses parenting time problems and other issues that have arisen after the divorce.  Please feel free to call attorney Daniel Fiskum, Esq., at (952) 270-7700 to schedule a free case analysis.

Fiskum Law Office, P.A., is a full-service divorce and family law firm conveniently located in the Carlson Towers, near the Ridgedale Shopping Center in Minnetonka, Minnesota, at the intersection of Highway 494 and Highway 394.

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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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MN Divorce and Income Tax Returns

When you are getting divorced, it is important to pay attention to income tax returns.  Often, it makes sense financially for a divorcing couple to file a joint income tax return for the preceding year.  Before you sign a joint return, you need to verify that your spouse has accurately reported his or her income.  If you sign a joint return and the IRS determines that because of something your spouse did, your tax should have been higher, you could be liable for payment of the additional tax.

You also need to pay attention to which spouse gets to claim the income tax dependency exemption for any minor children.  The default position of the Internal Revenue Service is that the parent who has the children in his or her care the majority of the time (i.e., 6 months plus one day) is the person who is entitled to claim the exemptions.

However, in Minnesota, divorce courts can modify this, and they can award the income tax dependency exemptions to one parent or the other, depending upon the facts of the case.  Generally, the exemptions are allocated equally. If there is only one child, then the right to claim the exemption is alternated between the parents on an annual basis.

If you have questions about this or any other divorce issue, call Minnetonka, MN, divorce attorney Daniel Fiskum at (952) 270-7700 to schedule a free divorce case analysis.

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.

 

MN Divorce and Government Shutdown

If you have been following the Minnesota news, you know that the Minnesota state government is going to shut down on July 1 because of lack of funding.  Only essential services will remain open.  This includes prisons, state mental hospital, and, fortunately, aid to local governments.

For now, the Minnesota court system is deemed “essential.”  This means that at least for the month of July, 2011, the court system will remain open.  No one is sure what will happen after July.  It is reasonably certain that after July, essential court activities will still occur – criminal court, for example.  It is unclear what will happen with other court functions.

But for now, if you are scheduled to go to trial in July, its still on.

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Minnetonka Divorce Guru

Generally, I am in favor of settling cases amicably, when ever that is possible.  There is a saying among lawyers and judges that a bad settlement is often better than a good decision from the court.  In part, this is because it is impossible for the court, after a contested trial, to draft an order that is comprehensive enough to apply to the minutiae of every day life.

For example – when parents divorce, the court will enter an order which grants custody and parenting time.  Often, the courts will be somewhat specific, for example, indicating that parenting time is every other weekend from Friday after school through Sunday at 6:00 p.m.  Additionally, the courts will typically grant parenting time on alternating holidays, during school breaks, and during the summer.

The problem is that in real life, it is often difficult to adhere strictly to a parenting time schedule.  Parent’s schedules can change.  Children’s schedules can change.  Unexpected events happen.  My experience is that it is almost impossible to draft a comprehensive order that takes into account all possible contingencies.  Necessarily parents have to cooperate.  I think this post-divorce cooperation can be enhanced if the parents can cooperate at the time of the divorce.  I think that if parents bring issues like custody and parenting time to trial, their ability to cooperate post-divorce is diminished.

Now, there are valid reasons why some parties cannot cooperate.  There are valid reasons why some cases need to be brought to trial.   But, with effective representation, I think that most Minnesota divorce cases can and should be settled.  Many Minnesota counties are using the Early Neutral Evaluation process to resolve cases, and while I have some problems with the way it works, generally speaking I think it is a good thing.  (My biggest problem with the ENE process is that if there is no settlement, the evaluators are expected to give an opinion about the likely outcome if the case goes to trial.  In my view, this is practicing law – it is applying a legal analysis to a fact situation and giving counsel based on the legal analysis.  The problem is that in order to practice law in Minnesota, one needs an attorney’s license.  Not all of the evaluators are attorneys.)

More about this in subsequent posts.

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: https://www.revisor.mn.gov/statutes/?id=518.18).  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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