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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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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