Divorce and Joint Tax Returns

Around this time of year we at Fiskum Law are often asked about whether a divorcing spouse should file a joint tax return with the other spouse.  Our answer is “it depends.”

When you sign a joint tax return with a spouse, you become jointly and severally liable for the tax debt owed.  This means that if there is money that is owed and your spouse does not pay it, the IRS will make you pay it.

What if your spouse misrepresents his or her income?  What if he or she failed to report some income, and when the income is reported later, it results in a significant tax debt?

If that happens, the IRS can make you pay the debt.  If you sign a joint tax return for 2012, you become responsible for any and all taxes and penalties owed in connection with any amended 2012 tax returns.

Can the divorce court enter an order directing your spouse to pay the debt?  Yes, it can, but if your spouse doesn’t have any money and you do, the IRS will take it from you.

So, you need to be careful before you sign a joint return.  There are benefits, including a lower tax rate, but you need to make sure that there has been full and honest disclosure of all income and debts so that you know what you are committing to.  I have developed language that I use in proposed Judgment and Decrees that, to the greatest extent possible, protects a spouse in this circumstance.

Feel free to call me, attorney Dan Fiskum, at (952) 270-7700 to schedule an in-person divorce case analysis.  My office is conveniently located in the Carlson Towers at the intersection of Highway 494 and Highway 394 in Minnetonka, Minnesota.

Minnesota Government Shutdown

Like most Minnesotans, whether Republican or Democrat, I do not like to see our state government shut down.  I hope our elected representatives do what needs to be done to get our state open for business again.

The Minnesota court system will remain open for now.  It is possible that some services might be curtailed, but not during the month of July.

I believe that in the future, the courts will either provide fewer services to people who are getting divorced, or they will charge more for the service.  Presently, many courts have an “in-house” service that helps people resolve custody and parenting time disputes.  In some counties, this is called the “Custody Early Neutral Evaluation” program.  In other counties, it is called the “Social Early Neutral Evaluation” program.  Generally speaking, I think it is a good thing and most of the time my cases that go through the CENE or SENE program are settled.

Currently, many counties offer the CENE or SENE program at a very reduced rate to people who have financial limitations.  And, they offer it at a very reasonable rate to everyone else.  It’s possible that this could be one of the casualties of the financial straits our government is in.  I don’t think the CENE program will go away because its too important to the system.  But, I do think it will begin to cost more.

What a lot of people forget is that when taxes are kept low, fees for governmental services go up.  Right now, in most counties, the filing fee for a divorce case is $400.  (In Hennepin its $402.)  I expect that fee to increase.  The fee for sending a fax to the court is $25.  The fee for filing a formal motion is $100.  The person who is getting divorced pays these fees.

Feel free to call me at (952) 270-7700 if you have any questions or concerns about Minneosta divorce law and the Minnesota state government shutdown.

Minnesota Divorce in 2011

As followers of this blog know, I believe that the biggest challenge currently facing the family court system in Minnesota is lack of adequate funding.  I think it is important that everyone communicate to their legislators how important it is that Minnesota courts be adequately funded.  Lack of adequate funding results not only in fewer judges, but fewer law clerks, court reporters, administrative clerks, and other professionals who are needed to get work done.

In many Minnesota counties, it can take several months before a hearing for temporary relief can occur in family court.  The rules of civil procedure only require 14 days advance notice.  But, in many cases the actual hearing is scheduled months out into the future.

Historically, the court used to provide much needed services to divorcing families for free.  These services included custody and parenting time studies and some limited mediation services.  The costs for these services have shifted from the court to the persons who are getting divorced.  They can be expensive.  For example, it can cost $10,000 to $12,000 to hire a licensed psychologist to conduct a private custody evaluation.  When people cannot afford these costs, they tend to be shut out of the process.

I give free initial consultations.  Feel free to call me at (952) 270-7700 if you are planning to get divorced and have questions or concerns.

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The Future of Family Law in Minnesota?

The fact is that I do not know what is going to happen in the future, anymore than anyone else does. But, I think it is possible to make some prognostications based upon what is happening now.

In my opinion, the Minnesota district court system, including the family court, is facing a crisis of funding.  There are not enough tax dollars to fund all of the programs that a healthy family court system requires in order to effectively meet the needs of the record numbers of people who are getting divorced. The result is a family court system that is only partially effective in resolving problem divorces.

Often, people who are getting divorced are at their emotional and financial worst.  They can engage in arguing and bickering and worse.  They can appear unreasonable and mean spirited.  But, regardless of how a party comports himself or herself, he or she is entitled to legal representation and legal services that fairly and promptly resolve disputes.

If the resolution of an issue is not prompt, it is not fair.

Let me repeat that: if the resolution of an issue is not prompt, it is not fair.

Because of the lack of funding, there can be tremendous delays in getting a matter heard and decided by a judicial officer.  One parent can be unfairly denied parenting time by the other parent, and during the months it can take to get the matter before a judicial officer, incalculable and unrepairable damage can be done to the child and parent relationship.  And there can be tremendous delays in establishing child support and spousal maintenance which can lead to hardship and even the loss of a home.

I believe that in the future, we will see more and more “private” judges–that is, Consensual Special Magistrates who are hired by the parties to act as an arbitrator.  In my opinion, this is not a particularly good idea for two reasons: 1. the parties usually have to pay a significant amount for this.  2.  Consensual Special Magistrates usually wear two hats.  Sometimes they work as magistrates and sometimes they work as attorneys.  They can have great familiarity with one attorney on a case, but not with the other.  They can tend to favor attorneys from big law firms, because they know that if they do, they are more likely to get repeat business.

I am aware of two prominent family law judicial officers who are leaving the bench soon in order to open up their own private mediation firm.  My guess is that they will also serve as Consensual Special Magistrates.  They have access to hard to get information about case levels, funding, staffing and other issues that are important to running a healthy family court.  My guess is that, while I cannot predict the future, they probably can.  And in that future, privately paid-for justice will figure prominently in the future of family court in Minnesota.

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MN Divorce Lawyers – How to Pick One

Once in a while people ask me how to pick a good divorce attorney.

Generally, an attorney with more experience charges more than an attorney with less experience.  That does not mean that you are necessarily going to get a better deal with a less experienced attorney, nor does it mean you are going to be more successful with an expensive attorney.  It all depends upon your needs and your bank balance.

If you and your spouse have already reached an agreement, you should have an attorney (who represents you and not your spouse) review it and put it in proper form for the court to act on it.  Generally, the attorney will take your agreement and from it, prepare a Marital Termination Agreement and something called “Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree.”  You do not need to spend a lot of money on that kind of project, its not controversial, and any divorce attorney should be able to do it for you.

If you and your spouse do not have an agreement, and you expect that there will be a fight about child custody, parenting time, or spousal maintenance, you might want to consider looking for an attorney with a significant amount of experience in those areas of practice.

You should meet with two or three attorneys before making a decision.  Ask them how they bill out their time.  An attorney who bills in quarter hour increments is probably going to cost you more than an attorney who bills in tenth of an hour increments.  With the quarter hour attorney–he or she is going to bill you for 15 minutes of time for a 5 minute telephone call.  Do the math – if an attorney charges $250 per hour, a 5 minute phone call will cost you about $62.50.  That’s a lot of money.  Is it worth it?  Maybe.  Maybe not.

You should ask the attorneys you meet with where they went to law school.   That can sometimes you something about their overall intellectual acuity.

You should ask them whether they belong to, or participate in, professional groups like the Minnesota State Bar Association Family Law Section, or the America Bar Association.

You can go online to the Minnesota Lawyer’s Professional Responsibility Board and see whether the attorney you are interviewing has ever been sanctioned by the Board.  That’s something that you should know.

It is problematic getting referrals from attorneys.  I do not give referrals because I consider each of my client’s cases to be strictly confidential.  Though most divorce court files are public and you can look at anybody’s divorce court file just by going to the courthouse an asking for it, I, nonetheless, keep all client information strictly confidential and for that reason I do not give out referrals.  Doctors do not give out referrals and attorneys should not do so, either.

You should ask an attorney what he or she thinks of your case, and how he or she would present it to the court if there is a hearing for temporary relief, or if there is a trial.  Different attorneys work differently, and he or she should be able to give you an idea of the particular approach he or she would take.

If you have done all of that, then make a decision based on your best judgment.

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Can I Represent Myself in a MN Divorce Proceeding?

People sometimes ask me whether they can represent themselves in a Minnesota divorce proceeding.  The answer is “Yes.”  One can always represent oneself in a court proceeding.

However, you need to keep in mind that in Minnesota, it is also legal to remove your own appendix. Just because its legal doesn’t mean that it is a good idea.

People who represent themselves are called pro se parties.  During a court proceeding, a pro se party is held to the same standard as an attorney.  A pro se party is expected to know the law, the rules, and the procedures, and he or she is expected to follow them.  He or she will not get a break from the court if he or she does not.

Generally speaking, the more complex a procedure becomes, the more necessary it is to have a attorney.  For example, if a person is appearing in court for the purpose of getting a domestic abuse restraining order, an attorney might not be necessary.  On the other hand, if a person is appearing in a series of court proceedings involving disputes about child custody, child support, spousal maintenance or other issues, hiring an attorney is probably a good idea.  It is very important that one hire an attorney if one’s spouse has hired an attorney.

Again, the court will let a person without an attorney represent themselves in court proceedings.  But, if that person messes up, they will not get a break.

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MN Divorce – Temporary Hearing

In a Minnesota divorce proceeding, if the case is not resolved early on by the Early Neutral Program or mediation, the next step might be a motion for temporary relief.  A “motion” is when one asks the court to do something.  In divorce cases, the usual motion seeks to have the court award temporary child custody, temporary child support, temporary spousal maintenance, etc.  A motion is a formal written request that is served and filed at least fourteen days prior to the date of the motion hearing.  The party opposing the motion needs to respond ten days before the hearing (if that party is seeking new relief) or five days before the hearing (if that party is not seeking new relief).

In many counties, it is difficult to obtain a prompt court date.  In Hennepin, Ramsey, Anoka and Wright County, for example, it can take two months or more to get on the court’s motion calendar.  And, many judges do not like to conduct hearings on temporary relief motions, and many might just say “take the case to trial.”

Sometimes temporary relief hearings are necessary, sometimes they are not.  I advocate aggressive pre-divorce planning and in many cases this can put the party in a position where they do not need to bring a motion for temporary relief.

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Minnesota Divorce Procedure

As I mentioned in the previous blog post, most courts in Minnesota do not use an Early Neutral Evaluation program.  In those counties, the procedure that takes place during the divorce is somewhat different.

Most Minnesota divorce courts convene a pre-trial hearing to talk about the scope and parameters of the case.  Often this is an in-court appearance with the attorneys and the parties, but it can also be accomplished by mail.  (The parties each send in an “Informational Statement” and on the basis of that alone the court will enter a pre-trial order.)

Some form of alternative dispute resolution (ADR) is required.  Usually this takes the form of mediation.  So, it is almost always the case that the court will order the parties to participate in mediation.  In mediation, the mediator tries to settle the case.  However, if the case is not settled, unlike an Early Neutral Evaluation, the mediator will not give his or her “evaluation” of the prospects of either party, should the case go to trial.

One thing that many people do not understand is that mediation adds another layer of cost to the proceeding.  A mediation session takes, at a minimum, about three hours.  However, it can take longer if progress is being made.  Sometimes mediation can be spread out over several days.  So, the parties have the cost of the attorneys plust the cost of the mediator to pay.  Usually, mediators charge anywhere from $250 per hour to $400 per hour, depending upon the mediator.

If mediation works, its a good thing.  It can save the parties a lot of money that they would otherwise spend going to trial.  If mediation does not work, it can be perceived by the parties as a waste of money.  In my experience, usually people want to settle the divorce and avoid the emotional and financial cost of a trial.  In those cases, mediation is likely to work.  Sometimes, however, one party does not really want to settle, and he or she wants to “punish” the other party by dragging the divorce proceeding out and making it cost more.  In those cases, mediation does not work.

Mediation is not a good idea if there has been domestic abuse between the parties.  And, while mediation is almost always required by the court, cases involving domestic abuse present an exception.  A court will usually not order mediation if domestic abuse has occurred.

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MN Divorce – The Next Step

For those of you who have been following the blog, I am writing about the various steps in the divorce process in Minnesota.  So far, I have talked about service of the Summons and Petition (by the Petitioner) and service of the Answer (by the Respondent).

Typically, each party files his or her pleading with the court and pays the court filing fee.  The court filing fee is $400 for each party ($800) total.  In some counties it is slightly higher.

A bit about terminology.  In Minnesota divorce cases, the party who starts the proceeding is called the “Petitioner.”  The other party is called the “Respondent.” A “pleading” is any document that you file with the court that is related to the divorce proceeding.  A divorce Petition, a divorce Answer, a Motion, a supporting Affidavit, are all “pleadings.”

After the process is commenced by service of the Summons and Petition, the next step will vary, depending upon the Minnesota county the proceeding takes place in.  Different counties follow different rules.  The reason for this in part has to do with the size of the county and the way that particular county system operates.  In many large counties (Hennepin, Ramsey, and Anoka) for example, a case is blocked to a specific judicial officer.  In other counties (Dakota, Scott, Carver) for example, a case is not blocked to a particular judge, and the parties could have a different judge each time the appeared in court for a particular matter.

In Hennepin County, the family court schedules an Initial Case Management conference as soon as the case is filed.  The rules require that the ICMC be held within 21 days.

At the ICMC, the court will ask whether the parties want to take part in two voluntary settlement programs.  If child custody and parenting time is in dispute, the court will offer a Custody Early Neutral Evaluation program.  The parties meet with two evaluators who will discuss the case with them and try to bring about a settlement.  If they cannot, they will provide their own evaluation of the likely outcome of the case.  CENEs are not free.  You have to pay for this.

At the ICMC, the court will also ask whether the parties want to participate in a Financial Early Neutral Evaluation program.  Its similar to the CENE, except it pertains to financial issues only, and there is only one evaluator.  FENEs are not free.  You have to pay for this, too.

I have some philosophical problems with the ENE programs.  They can be a good thing, and generally I support the concept.  But, more often than not, the evaluators are not lawyers, they are social workers. I have a problem when  a non-lawyer gives his or her evaluation of the likely outcome of a custody trial.  In my view, this is practicing law without a license.  (Generally speaking, practicing law involves applying a legal analysis to a particular fact situation.  In Minnesota, you are not supposed to do this unless the Minnesota Supreme Court gives you a license to do so.)

A social worker has never argued a case in court, has no idea about the leanings of a particular judicial officer, and generally should not be offering an opinion about what might happen if a case is litigated.

I also think that some neutrals can be too quick to give their own evaluation, and then terminate the meeting, when the case is not settled.  The evaluators who are social workers do not typically understand how negotiation works, they often do not appreciate the give and take, they often think their opinion is the only possible “correct” opinion, and they can get in the way of settlement.

This is not true for all Early Neutral Evaluators.  Many are very good, and do very good jobs.  But, you need an attorney who knows the difference, and knows when the evaluation has validity and when it does not.

In my next blog post, I will write about how the process works in counties that do not have an ENE system.

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MN Divorce – What Is An “Answer”?

In the previous post I talked about the divorce Summons and Petition for Dissolution of Marriage.  Service of these documents is the event that commences a divorce proceeding in Minnesota.  A person who is served with a Summons and Petition has 30 days in which to serve an Answer.  If he or she does not do so, and does not otherwise appear in the proceeding, he or she is in default.  This means that the initiating party can go to court, without any notice to the responding party, and obtain a divorce decree that grants just about any relief that person asks for.

So, how does one “Answer” a divorce petition.  First, I will tell you how you do not do it.  You do not send a letter to your spouse or to his or her attorney.  Nor do you simply call them up.

In Minnesota divorce proceedings, an Answer is a formal pleading that contains information similar to that found in the Petition for Dissolution of Marriage.  An Answer usually contains a request that the Petition be denied and it contains its own prayer for relief.

In Minnesota, both a divorce Petition and a divorce Answer must be verified.  This means that at the end of the document, they must contain a sworn statement, signed under oath by the party, that the information set forth in the Petition or in the Answer is true and correct, to the best of the party’s knowledge and belief.  Additionally, in Minnesota, both a divorce Petition and a divorce Answer must contain a signed acknowledgment (usually signed by the attorney and the party) to the effect that the party is aware that attorney’s fees may be awarded to the other party, if the person signing the pleading is acting in bad faith, defrauding the other party, etc.

Tomorrow I am going to write a blog about attorney’s fees in Minnesota divorce proceedings.

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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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Minnesota’s child support law

People who are getting divorced in Minnesota often ask questions about Minnesota’s child support laws.  The Minnesota child support statute changed significantly in 2007.  If you were divorced before 2007, you are probably operating under the “old” system.  If you were divorced after 2007, you are operating under the new system.  You can read the entire Minnesota child support statute here: http://www.revisor.mn.gov/statutes/?year=2006&id=518A

The main difference between pre-2007 and post-2007 child support laws is the method by which child support is calculated.  Under the old law, the key element was which parent had physical custody.  The parent with physical custody was owed child support by the other parent.  The amount of support was a percentage of the other parent’s net income, or take-home pay: 25% for one child,30% for two children, 35% for three children, 39% for four children, and so on.

The new child support law looks at the income of both parents.  Now, which parent has physical custody has nothing to do with it.  The important concept is “parenting time.”  Under the new law, each parent has a child support obligation.  The amount is determined by looking at each parent’s gross (before tax) income.  The calculation is fairly complex, and I use a computer program to figure it out.  You can use the same computer program I use by going here:  http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx

However, now in Minnesota, the amount of parenting time has a direct impact on the amount of child support.  The more parenting time one has, the less child support he or she has to pay.

Let’s face it folks: when people get divorced, its mostly about the money:  Who gets how much.  Who pays what bills. 

I’ve been praciticng divorce law in Minnesota since 1992.  Back then, people would fight about who got physical custody,  because the “winner” would receive more money.  The legislature thought that by changing the child support law they would create a system that was more fair and that led to fewer disputes.  They were wrong.  Now people fight about parenting time.  And, the “winner” still receives more money.

A lot of attorneys and others who comment on the state of family law in Minnesota would have you believe that divorce can be wonderful, that you can just spend an hour or two in mediation, resolve all of your differences fairly, reach a fair agreement and every thing will be great.  But, if your marriage relationship has come to the point where you are getting divorced, that should be pretty good evidence that you can’t get along, that you can’t have fair discussions and that you can’t reach agreements.  If you could do that, you probably wouldn’t be getting divorced.

So maybe its time to contact an experienced divorce lawyer?

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Online Divorce Scams

I spoke to someone yesterday who said she had paid $250 for so-called “online divorce.”  She said she didn’t get divorced and she didn’t get her money back. 

So called “online divorces” are a scam.  Do not waste your money.  Regardless of what the scammers say, you cannot get divorced online.  At best, all the so-called “online divorce” scammers can do is e-mail you some forms to fill out.  They cannot fill them out for you because they are not attorneys.   A non-attorney cannot fill out legal forms for you and file them with the court because that would be practicing law without a license, and that is illegal.

You cannot get divorced unless you file the correctly completed paperwork and pay the court filing fee.  In Minnesota, the court filing fee for divorce is $400 in most counties, and slightly higher in some counties.  If you have children and do not have an attorney representing each spouse, then you have to appear personally in court, before a judge or referee, for an in court review of the divorce documents.

Since the court filing fee is at least $400, it is impossible to get divoreced by paying someone $250.

Do not pay for divorce forms.  The divorce forms that you can buy on-line are garbage.  Minnesota has specific requirements that are different from those of other states.  You can get the best divorce forms for free right here: http://www.courts.state.mn.us/default.aspx?page=513&category=55

Now, just having the correct form does not mean that you know all you need to know about the law.  Generally speaking, you should hire an attorney.  But, if you cannot afford an attorney and need to get divorced, these forms are helpful.

Minnesota Divorce and Retirement Assets

Often people ask me about how to divide retirement assets when they get divorced.  As I’ve mentioned before, Minnesota is a marital property (or common law) divorce state.  It is not a community property divorce state.  (Most states are community property states.  Minnesota is not.) 

In Minnesota, a division of assets is supposed to be “equitable,” not “equal.”  These two concepts are not the same.  The reason this is important for you to know is that, depending upon the skill of the divorce lawyers, there can be a lot of “slop” when people get divorced.  Sometimes valuation dates get messed up, sometimes values are incorrectly determined, sometimes values change dramatically during the divorce process.  The result can be a property division that is not particularly “equal.”  But, it could be “equitable.” 

In Minnesota, a court can take up to one-half of a spouse’s non-marital property and award it to the other spouse.  Yep, you heard it correctly.  A Minnesota divorce court can take up to one-half of the property you had before you were married and award it to your spouse.  This does not happen very often, but it does happen. 

So, what about retirement assets?  There are several kinds of retirement assets–IRAs, Roth IRAs, 401(k) plans, and pension plans, to name a few.  IRAs and Roth IRAs can be divided by means of a direct rollover.  Essentially, the divorce decree describes the IRA to be divided and states how it is divided–that is, how much each spouse receives.  One spouse or the other takes the decree to the bank and the bank rolls a specific dollar amount into a new account for one of the spouses.  Its a pretty straight forward process.

401(k) plans and pension plans are not as easy to divide.  They require something called a “Qualified Domestic Relations Order” known as a “QDRO” for short.  A QDRO is a court order that conforms to requirements of federal law (mostly ERISA) that directs a plan administrator to take a particular action–in this case, to take some money from a 401(k) plan, for example, and give it to the non-participating spouse.  The end result is the same as with an IRA–the non-participating spouse gets some cash in his or her own account.  But, its a lot more work.  The QDRO has to be correclty worded and it has to meet with the approval of the plan administrator.  The reason for this is that if a distribution is made improperly, the qualified tax status of the entire plan can be jeopardized.  Depending upon the size of the plan and the number of participants, a mistake like this could be catastrophic for the plan administrator.  So, the QDRO has to be correctly written. 

It can be a bit more tricky to divide a pension.  One reason for this is that many pensions have an indeterminate payout.  In other words, you know that when you retire, you’ll get a certain monthly payment.  But, you do not know how much that monthly payment will be until you actually retire.  Its going to depend upon how much money is in the retirement plan and how many retirees are sharing it. 

So, in that case, a QDRO is written that describes a fraction.  Without getting too technical, basically the non-participating spouse receives one-half of the monthly payment that is attributable to the years of marriage.  The participating spouse receives one-half of the monthly payment that is attributable to the years of marriage, plus all of the monthly payment that is attributable to the post-marriage years.  This is expressed by a mathematical equation that takes into account the years of marriage and the total number of years of participation in the plan.

There is also something called a survivor annuity.  You need to research this by getting complete information from the plan administrator.  Many plans have something similar to an “insurance policy” that allows for continued payments to a non-participating spouse when the participating spouse has died.  Often, when one takes advantage of this, the monthly payments upon retirement are somewhat less.  Also, many plans have a provision that when the non-participating spouse dies, the participating spouse’s monthly payment is increased to the amount that it would have been had an award not been made to the former spouse.  Check this out, and when writing the QDRO, do not leave money on the table.

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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.

The Cost of Minnesota Divorce

People often ask how much it costs to get divorced.  The answer is “it depends.”  Certain costs are predictable.  Currently, it costs $400 to file a divorce petition in a Minnesota district court.  Some counties charge slightly higher, depending upon the amount of the surcharge for the county law library.  If each party appears in the proceeding, each party has to pay their own filing fee of $400.

It costs $100 to bring a motion for temporary relief (or to file any other kind of motion) in family court.  This is in addition to the $400 court filing fee.  Again, each party that appears in the motion proceeding has to pay the $100 filing fee.

It costs $25 to file a document by fax, even for a one page document.  Sometimes, because of time deadlines, it is necessary to file by fax.  If the fax is more than 50 pages, it costs another $25.

To start the divorce process, the responding party has to be personally served with a copyof the Summons and Petition for Dissolution of Marriage.  Depending upon who does the service, the cost can be $50 on up.

If the court requires a custody evaluation, this can cost quite a bit.  In the past, courts had internal court services workers who would perform custody evaluations.  Generally speaking, the courts no longer offer this service because of the cost.  So, custody evaluations are often done by professional psychologists or sometimes professional social workers.  The cost of a custody evaluation typically starts at about $5,000.  This would be an inexpensive evaluation.

If the parties agree on everything, it could still take 10 or so hours of attorney time to prepare all of the paperwork and actually get the parties divorced.  If the parties have a lot of assets to divide (retirement accounts, real estate, motor vehicles) it can take more than 10 hours, even with an amicable settlement.

If the parties disagree, divorce can cost quite a bit.  The biggest cost is the cost of a contested child custody proceeding.  This can cost thousands and thousands of dollars.  Sometimes its worth it to fight about this, and sometimes its not.  This is a decision that one needs to make for one’s self, weighing the benefits and the disadvantages.

If you have questions, feel free to call Minnetonka Family Law at (952) 270-7700.

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MN Divorce Mediation – When Is It Necessary?

There are a lot of misconceptions about divorce mediation in Minnesota.  The following might be helpful:

1.  What is mediation?  It is a process in which the parties to a divorce action and their attorneys meet with a neutral third party in an attempt to resolve disagreements through negotiations.

2.  Should we do mediation right away?  Probably not.  You should wait to see whether you and your spouse have a significant disagreement that cannot be resolved between the two of you, or, between the two of you with input from your attorneys.

Generally I try resolve disputes from the beginning.  I try to find out whether there are intractable disputes.  Sometimes disputes exist simply because people do not know what the law requires.  Often the other attorney and I can reach a settlement without the need for a mediator.  This is always better, because mediation costs about $250 per hour.  Spend a day in medation and, well, you do the math.

3.  Do I need an attorney if I go to mediation?  Yes.  Otherwise, you will probably not know what your legal rights and entitlements are.  How can you bargain for something if you do not know about it, or you do not know whether you have an interest in it?

4.  Will the mediator give me legal advice?  No.  The mediator’s job is to be neutral, and to try to get you and your spouse to reach an agreement.  The mediator should not be giving legal advice to you, and she should not be giving legal advice to your spouse.  If she did, she would no longer be neutral.  And, the mediator is not interested in getting you the best possible deal.  The mediator just wants to settle the case.  He or she isn’t necessarily interested in whether you get a “fair” settlement.

5.  How should I pick a mediator?  You probably shouldn’t.  Some mediators are good, some are ineffective.  A Minnesota divorce lawyer who has experience generally knows who the good mediators are.   The same names tend to come up often.

6.  What if mediation doesn’t work?  Well, not everything works.  At least you tried.  If you cannot settle the case during mediation, the case is placed on the court’s litigation calendar.  A pre-trial hearing is scheduled, to be followed by a trial.

But–if that happens, all is not lost.  There is still time to settle the case.  There is still time to return to mediation.  That said, sometimes trials are the easiest way to resolve a dispute.

For more information, please feel free to call me at (952) 270-7700.

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Hennepin County FENE

In Hennepin County, they have a program called “Financial Early Neutral Evaluation.”  It is similar to the custody and parenting time neutral evaluation program, but there are differences.  For example, there is only one evaluator and the parties are required to pay him or her an hourly rate. 

I have participated in Financial Early Neutral Evaluation proceedings in Hennepin County on numerous occasions.  My experience is that sometimes it is effective, sometimes it is not.  In my opinion, the difference is the quality, skill and experience of the neutral evaluator.   The hands-on evaluators who work actively to push both parties towards a reasonable settlement tend to get the best results.  The evaluators who seldom express an opinion, who rely on accountants or others to do their work, tend to get worse results.

Call me for more information and a free consultation at (952) 270-7700.

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How to Pick a Divorce Lawyer in Minnesota

People sometimes ask me for advice on how to pick a divorce attorney in Minnesota.  Usually these are people who have never needed an attorney in the past.  They have no experience with the legal system, no experience with attorneys, and have no idea where to begin.

Generally speaking, it is best if a person like this talks to a few attorneys, either by telephone, or preferably, in person.  Most attorneys give free initial consultations, but some do not.  This in itself does not mean that you should or should not hire an attorney who does not give a free initial consultation.  But, if you do not want to pay for a consultation, you need to make sure that the attorney you are meeting with will do it for no charge.

At an initial consultation, an attorney should be able to explain the basics of how the divorce process works in terms that you can understand.  He or she should be able to explain about the various forms of alternative dispute resolution that are available.  He or she should also be able to explain all of the fees and costs involved.  Typically, an attorney who gets involved in the case will charge a retainer.  A retainer is usually an advance payment for work the attorney does in the future.  Usually, the retainer pays for work to be performed, and at the end of the representation any amount left over is refunded.  However, this is not always the case, and you need to make sure that you understand this point.  Some attorneys and law firms charge a retainer just to be available to do the work.  You pay the retainer, then you also pay additionally for the actual work.  Make sure you ask.

It helps to ask what law school your attorney attended.  All law schools in the United States are ranked.  The higher ranked schools are more difficult to get in.  There is more competition for these schools and only the smarter students get accepted into the better schools.  While all attorneys who are licensed to practice in Minnesota have the minimum qualifications required by the Minnesota Supreme Court, you should at least know what law school the attorney you are going to hire attended.

It is also helpful to hire an attorney who practices primarily in the area of divorce law.  Divorce law in Minnesota is always changing.  An attorney who practices primarily in the area of divorce law will more likely be up to date on the various changes that the law undergoes.

I have never met a person who was actually happy to pay a divorce attorney.  This is understandable.  People have a lot of things they want to spend their money on, and a divorce attorney is very low on this list.  However, people also have a lot of things they need to spend their money on, and a divorce attorney can be very high on that list.  This depends upon the client’s issues and circumstances.  If they are facing a tough legal fight brought on by an embittered spouse who wants revenge at all costs, then that person needs competent legal help.   It is their embittered spouse who actually determines the length and cost of the proceeding.

Elsewhere on this blog I have written about collaborative law in Minnesota.  Look for that blog post because it also pertains to hiring a divorce attorney in Minnesota.

For a free initial consultation, feel free to call Dan Fiskum at (952) 270-7700.  While I am happy to answer basic questions about the divorce process, my experience, fees and costs by telephone, I cannot give legal advice over the telephone to someone I have not met.  I go into much more detail when a person comes in for a free initial interview that takes place in my office.

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MN Orders for Protection and Divorce

In Minnesota, there is a type of court order that is called a “domestic abuse order for protection.”  This is an order that is intended to protect an abused party from an abuser.  Typically, a domestic abuse order for protection provides that the abuser may not have contact with the abused party, and that if he or she does, he or she is subject to arrest and prosecution.  To obtain an order for protection in Minnesota, the abused party files a petition in district court which states the nature of the abuse and sets forth the relief requested.

When people are genuinely the victims of domestic abuse, an Order for Protection is a necessary an appropriate remedy.  No one should be abused or threatened.  The abusing party does not get a free pass, just because he or she happens to be married to the person they are abusing.  If you are the victim of domestic abuse, you should seek help from an attorney and you should consider all options, including filing a petition for an Order for Protection.

Unfortunately, many people falsely claim that domestic abuse occurred in order to gain an advantage in a divorce proceeding.  This is unfortunate, but it happens to be reality.  Some people lie.  They often justify this to themselves by thinking that the end justifies the means.

If you are getting divorced, your spouse may lie about domestic abuse in order to get a quick order throwing you out of the house.  If this happens, you should consult with an attorney.  At a domestic abuse hearing you will be presented with three options.  None of them are very good.  But, generally speaking, it is best to try to get the court to defer all decisions relating to custody and parenting time to the court that is presiding over the divorce proceeding.  Often the best way to accomplish this is to avoid a trial on the issue of whether the domestic abuse occurred.  This can be done by agreeding to entry of an Order for Protection without the court making a finding that domestic abuse occurred.  Then, take up the issues of child custody, parenting time, child support, etc., in the divorce court.  Generally you will get a fairer hearing.

I want to emphasize that I understand that there are real victims of domestic abuse.  These people are entitled to an Order for Protection.  But, there are also people who lie about domestic abuse in order to gain an advantage over their spouse.  If a case is presented correctly, I have confidence that our court system can tell the difference.

MN Divorce and Child Support

The Minnesota child support law were significantly revised effective 2007.  Under the new child support law, income from both parents is used in calculating the amount of support that is paid.  Income from a new spouse or new significant other is not used in the calculation.

An interesting feature of the new child support law is that each party receives a credit for child support they pay for other children who are not in their custody, and they also receive a credit for other children who life with them, but for whom they are not obligated to pay support.  This change was intended to make the law a bit more “fair.” 

Also, spousal maintenance is now considered income from which child support must be paid.

Another interesting feature of the new child support law is that the amount of child support that one pays (or that one receives) is related to the amount of parenting time.  Under the old law, child custody was determinative of the amount one either paid or received for child support.  Now, labels like “sole physical custody” or “joint physical custody” have much less significance.  Its all about parenting time.

This means that parents need to be very careful when making formal or informal concessions about parenting time.  A parenting might informally agree to 50/50 parenting time, not realizing that this will be come the norm, and that as a result, that parent may not be entitled to receive very much, if any, child support.  I do not think it is callous or crass to talk about parenting time and child support together.  The “best interests” of the child are paramount.  It is very possible that in many cases, it is in the child’s best interests to be with a primary parent who actually receives enough money in child support to be able to provide a reasonable living environment, healthy food and clothing.

If you are thinking about making an informal agreement with your spouse, you could be putting yourself in a position where you might lose tens of thousands of dollars of future child support.  If it is in your child’s best interests that he or she be raised by a primary parent (you) who receives an adequate amount of support, then you need to consider parenting time arrangements very carefully. 

As always, its best to lawyer up sooner rather than later.

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Divorce Mediation in MN

People often ask me about mediation.  Mediation occurs when two parties to a divorce try to negotiate an amicable settlement with the help of a neutral third party.  I am all in favor of mediation, though because it costs quite a bit I usually try to resolve the case directly with the other party’s attorney.  If that does not work, then I often propose that the parties and attorneys agree to participate in mediation.

The mediators that I use are professional mediators who have had specific training in resolving divorce cases.  They have knowledge about financial issues and custody / parenting time issues.  usually the mediators I use are attorneys who have had additional training as a third party neutral.

Mediation is voluntary.  It is also confidential.  If the parties do not resolve the case, none of the things that are said in mediation can be repeated to the judge or used in the courtroom.  The only exception to this rule is that if there are credible allegations of child abuse, the mediator is obligated to do what the law requires and report the abuse to the proper legal authority.

People should never use someone they know personally to try to broker a divorce agreement.  This is a bad idea for several reasons.  It unfairly puts someone in the middle and often demands of them skills that they do not have.  Similarly, people should never use a priest, pastor, minister or rabbi to try to broker a divorce agreement.  Generally speaking, people like this just lack the specific legal knowledge needed to bring about a reasonable (and enforceable) agreement.

If you have more quesitons about divorce mediation in Minnesota, please feel free to call me at (952) 270-7700.

Minneapolis Divorce Lawyer

Every once in a while, people ask me whether I will travel to out state Minnesota to represent someone in a divorce proceeding.  Usually the answer is “yes,” but I have to qualify the answer.  As a Minneapolis divorce lawyer, I primarily work in the greater Twin Cities are, including Minneapolis, St. Paul, and the surrounding seven county area.

There are two issues relating to my working out of state.  The first is that it can get expensive if I have to travel to a destination that is more than, say, 100 miles out of the Twin Cities.  The second issue is that there can sometimes be a “home town” advantage that goes to local counsel.  Generally, an attorney who practices in a small town in northern Minnesota is more familiar with the local bench and their local rules and practices.  Sometimes this can be an advantage.

On the other hand, since I settle most of my cases amicably, without a trial, knowledge of the local rules and peronalities is not as important.  As we are taught to say in law school, “It all depends.”

I do not represent people in Iowa, Wisconsin, or the Dakotas, unless the case involves Minnesota parties or Minnesota issues.  Divorce law is unique from state to state.  For example, Wisconsin is a community property state while Minnesota is a common law property state (Minnesota is also called a “marital property” state) but common law is more accurate because essentially the existing common law was incorporated into Minnesota’s divorce statutes when the statutes were written.

So, even though I am a Minneapolis divorce lawyer, I welcome telephone inquiries from all over the State of Minnesota.  Sometimes I can be helpful, sometimes I can’t, but its always worth a telephone call to find out.

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Appealing a MN Divorce Decree

People sometimes ask about appealing a case to the Minnesota Court of Appeals.  Generally speaking, it is difficult to overturn a judge’s decision on appeal.  But, like all of us, judges are human and they make mistakes.   Sometimes an appeal is necessary.

What follows is not legal advice.  You have not retained Fiskum Law or MN divorce lawyer Dan Fiskum unless you have a signed written retainer agreement.  With this disclaimer, I’ll say the following about appeals:

Under the current MN Rules of Civil Procedure, a party has 60 days from the date a divorce Judgment and Decree was entered to notice and file an appeal.  However, if you believe you want to appeal your case to the Minnesota Court of Appeals, do not wait until the 59th day.  Preparing an appeal takes a significant amount of time, and it cannot be done in one day.

For post-decree orders other than a final divorce judgment and decree, a party has 60 days to appeal, counting from the date of service of notice of entry of the order by the opposing party.  Generally, temporary orders, that is, orders entered during the time the proceeding is pending, are not appealable. 

Appeals are expensive.  The court filing fee for the Minnesota Court of Appeals is $550.  The appealing party is also required to post a bond with the district court, or to deposit $500 in lieu of bond with the district court administrator.  However, the cost of the bond can vary depending on the financial value of the issued involved on appeal.

The appealing party needs to purchase a copy of the transcript from the trial.  Typically these cost $3.50 or so per page.  A transcript can be several hundred pages in length, so the cost can be very significant.  The appealing party also needs to purchase eleven copies of the appellate brief.  The cost of printing and serving the appellate brief can be hundreds of dollars.

Of course, then there is the attorney time.

So, before you consider appealing your divorce judgment to the Minnesota Court of Appeals, you need to consider very carefully what you stand to gain and weigh that against the costs of appeal.

One other point–before appealing to the Minnesota Court of Appeals, a party has the opportunity to as the district court judge to amend the findings and judgment.  This is actually necessary step in any appeal, because it changes the appellate standard of review and makes it somewhat more favorable to the appealing party.  Usually, judges do not change their minds.  However, I have had many cases where I successfully brought a motion for amended findings and an appeal to the Minnesota Court of Appeals was not necessary.

A motion for amended findings needs to be scheduled within 30 days of the date the judgment was entered.

So, if you are considering an appeal, do not waste time.

The foregoing is not legal advice and does not create an attorney and client releationship between the reader and Fiskum Law, or MN divorce lawyer Dan Fiskum.

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When Should You Hire an Attorney?

A lot of people wonder if they really need an attorney.  Or, they may think they need an attorney, but want to bring him or her onboard only towards the end of the proceeding.

When people who are getting divorced ask me whether they need one, my answer is “Yes.”  Of course, I am an attorney and I have a bias.  But, even with my bias, my answer is still correct.  If you are getting divorced you need an attorney.

Another question people might have is whether they can afford an attorney.  That’s not a question I can answer.  I usually suggest that they cannot afford not to have an attorney, but then again, I’m biased.  I know that  a lot of people cannot afford to hire an attorney.  This is one reason that I have a link to free divorce forms on my website.  I think this is a good idea.  It does not conflict with what I do, because I do not sell forms.  I sell legal advice.

Does it work to handle most of the divorce proceeding yourself, then bring the attorney on for advice after you have signed an agreement?  No, this does not work. 

Here’s a question: would you sue someone for $300,000.00 without an attorney?  Probably not.  If you were being sued for $300,000.00, would you hire an attorney to defend you?  Probably.  Okay, so what if spousal maintenance is an issue?  Assume that under the facts of your case, either you or your spouse is entitled to $2,500 per month in spousal maintenance for ten years.  Do the math.  In one year, $2,500 per month equals $30,000.00.  Over ten years, $2,500 per month equals $300,000.00.  Regardless of whether you are trying to get $300,000.00 or trying to avoid paying it, doesn’t it make sense to have the professional help of an attorney?

There are other areas where it makes sense to get legal advice from an attorney.  There are nuances to child support and child custody laws that the average person does not understand.  And, why would they?  Most people only get divorced once or twice in their lives.  I have not kept track, but I have probably been involved in at least two thousand divorces, giving advice, representing clients in divorce proceedings, post divorce proceedings, child support modifications, paternity proceedings and other kinds of court proceedings.

You can rely on what Chuck from shipping told you about his divorce.  Of course, he might have been divorced ten years ago, in front of a different judge, when different laws were in effect, with totally different facts.  Or, you can rely on what an attorney tells you.

What are Family Court Referees?

There are two counties in Minnesota that use “referees” in family court.  These counties are Hennepin and Ramsey.  A referee is a judicial officer who has authority to make rulings in divorce cases.  A referee does not have the same level of authority as a judge.   Typically, orders issued by family referees are “recommendations” that a district court judge needs to approve.  In practice, district court judges tend to approve most, if not all, orders that are recommended by a referee.

The Minnesota court system began using family court referees sometime around 1980.  Family court referees are paid somewhat less than district court judges.  In Minnesota, a district court judge is paid $129,124.00 annually.  A family court referee is paid $116,197.00 annually.    So, using referees instead of judges represents only a moderate cost savings. to the court  Generally, judges are rotated on and off the family court bench every couple of years.  The available pool of judges in Hennepin County is quite large.  There are probably about 50 judges on the Hennepin County bench, so at any one time only a portion of them are sitting on the family court bench.  Family court referees stay on the family court bench during the entire time they are a family court referee.  Courts, like other institutions, tend to have institutional memories.  I suspect that having a core of judicial officers (family court referees) who stay on the family court bench their entire career makes for continuity in the family court division.

In Minnesota, the mandatory retirement age for judges is age 70.  This is established by statute.  There is no mandatory retirement age for referees.  In fact, once a chief judge asked a family court referee who was 70 to retire.  The referee challenged the request, the case went to court and to an appeal, and the appellate court confirmed that the referee was not required to retire at age 70.

In Hennepin and Ramsey Counties, cases are assigned to judicial officers (that is, to judges and referees) by a central assignment office.  In Hennepin County, there are approximately 8 or 9 judges on the family court bench, and approximately 5 referees.  In Ramsey County, there are approximately three judges on the family court bench and approximately 5 referees.  Whether your case is assigned to a referee or a judge should not make a big difference. to the outcome of your case.

Each party has the right to remove a judicial officer from their case, without cause.  However, a removal without cause can only be done if the judicial officer has not yet issued an order in the case, and it can only be done once.  However, if that party wants to remove a second judicial officer, the party has to affirmatively demonstrate that the judge is biased, or that there may be some other appropriate reason.

Why Divorce Sucks

Divorce is a difficult process.  It is jarring.  It is emotional.  Aside from the death of a loved one, divorce is probably one of the more miserable experiences a person will have.  People going through a divorce have anxieties about the future.  They have concerns about how divorce will impact their children.  They have worries about debts and bills and who’s going to pay them.  They have worries about how they will afford medical insurance after the divorce. 

But possibly the worst part about divorce is that the person they used to confide in–their spouse–is now their adversary.  The person that they used to rely upon for emotional, moral and financial support is now their opponent in a legal proceeding that is expensive and that will leave one or both of them worse off in many respects.

Don’t get me wrong.  I’m a divorce lawyer, not a marriage counselor.  I get people divorced.  If you want to save your marriage, you do not start by going to a divorce lawyer. 

Having said that, there is a way to divorce and turn down the volume a bit on the negative emotion.  I am not a psychologist, but I usually recommend to my clients that they try to understand their situation from a disinterested, third-party perspective.  I think it helps if one does not take the process “personally.” 

There is a great book that I often tell my clients about.  I did not write it, I do not know the authors, and I do not have any financial interest in the success of the book.  Its just a great book for understanding how human nature can play out in the context of a divorce proceeding.

The book is entitled “Mistakes Were Made (But Not By Me).”  It is written by Carol Tavris and Elliot Aronson.  It is available on Amazon for cheap.  This book describes the process of self-justification that we all go through.  The book does not limit its discussion to marriage and divorce, but it does contain a chapter on that subject.  The process of self-justification can turn us into irrational, irritable, mean-spirited people.

For most people, deciding to divorce a spouse is a big deal.  Once that decision is made, the person making the decision often has to justify it to himself or herself.  That’s right–they continue to justify the decision afterwards.  They often unconsciously (or even consciously) look for ways to create problems with their spouse or ex-spouse.  They do this so they can tell themselves that their spouse or ex-spouse really is a jerk and that their decision to divorce was justified after all.  They need to find or create “problems” in order to justify their decision.  It doesn’t take long for them to turn into bullies, convinced that any tactic they use is justified by their perception of their spouse’s behavior.

Here’s the irony: my experience is that mediation does not work with bullies, at least not right away.  Just like on the school playground, the only thing a bully understands and respects is the kid who stands up to him.

I find that when I have a shrill opposing party, represented by an equally shrill opposing attorney, if I try to be conciliating I’m just teaching them that they get what they want by being a bully.  Being a bully works for them, so the level of bullying escalates.  On the other hand, if I effectively make it clear that negotiations only begin when they realize that bullying will get them nothing, and when I back that up with my intention to seek court intervention by way of a motion for temporary relief or other action, the level of bullying often decreases to a point where genuine give and take can occur and a fair settlement can be reached.

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MN Divorce Proceeding – Temporary Relief

In a Minnesota divorce proceeding, the temporary relief hearing can be the single most important aspect of the case.  At a temporary relief hearing, the judge will make decisions on a temporary basis–decisions about temporary child custody and parenting time, temporary child support and temporary spousal maintenance, temporary occupancy of the home, and other issues.  Since most cases are settled and do not go to trial, often the decision made by a judge at a temporary relief hearing will closely resemble the final outcome of the case.  This is not always true, but very frequently it is.

The temporary relief hearing occurs early on in the process.  In some counties, an attorney can schedule a temporary relief hearing immediately after filing the divorce Summons and Petition with the court.  The opposing side has to have at least 14 days notice prior to the hearing, so this means that a temporary relief hearing can occur within about two weeks of the commencement of the divorce action.  In other counties, it can take a couple of months to get a date for the temporary relief hearing.

At a temporary relief hearing, information is submitted to the court in the form of written affidavits.  An affidavit is a sworn, notarized statement that sets for the salient facts.  Almost always, the person bringing the motion for temporary relief will submit an affidavit stating the basis for the various relief he or she is requesting.  And, frequently, the person bringing the motion will submit affidavits from other people–relataives, neighbors, employers–people who have personal knowledge about the situation.  For example, a relative may have personal knowledge of the parentig skills of a party and that knowledge might be relevant to the issue of temporary custody or temporary parenting time.  An employer may have personal knowledge of the work situation of a party–income, hours worked, bonus income–and that information might be relevant to the issue of the amount of child support or spousal maintenance.

The reason a temporary relief hearing is important is that it gives both parties an insight into how the judge may look at the case if the case went to trial.  My experience is that as divorce proceedings drag on, one or both parties gets emotionally and financially drained.  Even though they may not want to settle the case when it is new, after six months of litigation they tend to look at settlement more favorably, even if they cannot bargain for everything they want.  The Order for Temporary Relief that comes out of a temporary relief hearing tends to establish the parameters of the negotiations.

My personal view is that if a party has limited resources, it may make sense to consider investing most of them in a motion for temporary relief before going to mediation.  Mediation is very expensive.  I was recently involved in a mediation session that cost almost $1,000 per hour.  (The mediator was paid $300 per hour, the financial consultant was paid $190 per hour, and each attorney received their hourly rate too.)  If a party spends all of their resources in mediation and the case does not settle, there may be little cash left to bring a motion for temporary relief.

Of course, litigation strategies vary from client to client.  The biggest mistake many attorneys make is to approach a divorce proceeding without a litigation strategy.  For more information, please feel free to call me at (952) 270-7700.

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Collaborative Law in Minnesota

Occasionally people ask me about “collaborative law.”  They want to know what it is, and whether it is “better” than other alternatives.  I never answer this question directly.  I have many attorney friends who practice “collaborative law,” and I respect them and what they do.  To answer this question, I just present the questioner with a few facts and let them make up their own mind.

There is a lot of misunderstanding about collaborative law.  Much of the misunderstanding is the result of marketing hype from some collaborative lawyers who are trying to generate business for their law practice.   Some collaborative lawyers prey upon the concern of people who are getting divorced and who do not want to spend a lot of money.  Some collaborative lawyers prey upon the concern that some people have about going to court.

Marketing hype aside, a “collaborative law” divorce proceeding is not much different than any other kind of divorce proceeding.   The parties and their attorneys meet and try to settle the case.  Sometimes they bring in outside mediators or evaluators, and sometimes they do not.  They may meet once or twice or they may meet several times.  The primary difference that sets a “collaborative law” proceeding apart is that the parties and attorneys agree before hand that if they cannot settle the case, the attorneys will withdraw and the parties will retain different attorneys before going further.

I do all of these things for my clients.  I try very hard to settle cases.  I use outside mediators and evaluators.  I try to get comprehensive information about parties’ finances and other issues, and I try to bring about a reasonable settlement on behalf of my client.  However, if my client and I cannot settle the case, I do not bail out on them.  I continue to represent them, and if necessary I go to trial for my clients.

Which system is better?  It depends.  Some attorneys do not have trial experience.  They have not engaged in extensive pre-trial discovery practice, they have not taken depositions, they have not cross examined hostile witnesses, they have little knowledge of the bench, and generally they have little practical experience in the court room.  Out of fairness to his or her client, probably an attorney like that should withdraw if the going gets tough.

Collaborative law might not work well if one of the parties is a bully.  A bully can use the collaborative law process to drain the other spouse’s financial and emotional resources.  These meetings are expensive.  They take lots of attorney time to prepare for and attend, and attorney time costs money.  If, after a series of several meetings the bully decides that he or she cannot settle the case “after all,” then the money paid to the collaborative attorneys might be wasted.  The new attorney will need to charge to get up to speed on the case, and the divorce process essentially starts from scratch–except that the non-bullying party might have spent $5,000 or $10,000 needlessly on bogus settlement negotiations.  And, there is an emotional cost to investing in the collaborative process only to have it fail. 

Bullies understand all about emotional warfare.  They often have an intuitive understanding of how to use emotions to bully their spouse.  Bullying is not always about violence, per se.  It is also about threats, belittling someone, and undermining someone’s confidence and self esteem.  Often, bullies learn these lessons on the grade school playground, and they never forget them.

In my experience, settlement negotiations are more likely to be successful if there is the possibility of going to court if the negotiations break down.  Otherwise, what motivation does an opposing party have to settle the case?   Keep in mind that “going to court” does not necessarily mean having a full-blown trial.  Sometimes a judge can effectively settle an issue by making a ruling after 15 minute motion hearing.

While I usually do not threaten litigation during settlement talks, sometimes an intransigent opposing party needs to know that if a judge were asked to decide an issue, the decision might likely go against the opposing party.  That knowledge can motivate an opposing party to consider a fair settlement.  It can also motivate the attorney for the opposing party to encourage his or her client to settle.

Sometimes divorce is tough.  The reason people get divorced is because they cannot get along with each other when they are married.  Nothing magic happens to change people when they hire collaborative law attorneys.  If your spouse is argumentative and difficult to deal with during the marriage (which is why you are getting divorced, isnt’ it?) your spouse will probably be argumentative and difficult to deal with after you each have hired collaborative law attorneys.  The future tends to resemble the past.  Your spouse probably will not undergo a personality change over night. 

It might be pretty to believe that, even though you have just come through a horrible marriage, all you need to do is hire a collaborative law divorce attorney and every thing will be fine.  But reality is often different.  You need to carefully consider all of the reasonable options available to you, and you need to consider your spouse’s personality.  You need to consider the history of your marriage–how you got along, how you resolved conflicts, and, importantly, why you are getting divorced.  Then you need to decide whether you can afford to hire an attorney who will quit on you if your spouse does not agree to settle the case.

Feel free to call me at (952) 270-7700 for more information.

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MN Divorce and Attorney’s Fees

Often in a Minnesota divorce proceeding, one spouse works while the other spouse takes care of the children and the home.  Often, the spouse who works has access to, and control over, the income that comes into the family.  Sometimes when one of the spouses begins to talk about divorce, the spouse with control over the income will start keeping the income for himself or herself.  This can be a problem for the non-working spouse.

In a Minnesota divorce proceeding, regardless of whether the case goes to trial, both spouses need the benefit of  legal advice from their own attorneys.  It is a huge mistake for a party to think they do not need an attorney, simply because they and their spouse agree on everything.  If a party does not know what they are entitled to, they do not know what they are giving up. 

One attorney cannot represent or give legal advice to both spouses, because this would create a conflict of interest.  Too often, one spouse will accept the other spouse’s attorney’s claim that things have to be resolved a certain way.  This problem is exacerbated when that spouse does not have access to the family income and cannot afford to hire an attorney.

Minnesota divorce law contains a provision that can require one spouse to contribute to the attorney’s fees of the other spouse.  The theory is that money earned during the marriage is marital or family money.  One spouse has no greater entitlement to the family money, just because he or she happened to earn it. 

If you are the spouse who does not have access to the money, you should demand that your spouse provide you with sufficient funds to retain your own attorney.  If your spouse refuses, you should make the same demand to your spouse’s attorney.  If the spouses attorney refuses to advise his or her client to provide you with attorney’s fees, you should bring a formal request before the court, asking for an award of temporary attorney’s fees so that you can, in good faith, assert your interests in the divorce proceeding.  I do this on behalf of clients fairly often.

If you have questions about this or any other topic, contact me at (952) 270-7700.

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MN Divorce and Bankruptcy

Minnesota Divorce and Bankruptcy: Often people who are contemplating a divorce are also contemplating bankruptcy.  Marriage relationships can deteriorate quickly when there is significantfinancial pressure.  In this circumstance, bankruptcy can be a reasonable option.

If you are considering bankruptcy at the same time you are considering divorce, you need to consult with both a bankruptcy attorney and a divorce attorney.  And, your spouse and you should not use the same bankruptcy attorney, nor should you use the same divorce attorney.  Your interests are not the same.

In Minnesota, it is a violation of the rules of ethics governing attorneys for an attorney to represent both parties to a divorce when children are involved.  While it is technically not a violation for an attorney to represent both parties to a divorce when no children are involved, this is not a good idea for the parties or for the attorney, and I strongly recommend against it.

One notion that can confuse couples going through bankrutpcy is that the definition of the marital estate that is provided by Minnesota divorce law does not exist if a divorce is not pending.  Here’s an example: in Minnesota, a spouse has an interest in real property owned by his or her wife or husband, even if the spouse is not shown on title as an owner.   However–this “marital interest” comes into place only when a divorce proceeding has been started (or possibly when the property is sold).  In a Minnesota divorce proceeding, who’s name happens to appear on title to property does not mean very much.  In a bankruptcy proceeding, the name on title can be very significant.

Also, in Minnesota divorces the court will allocate responsibility for payment of debt to one spouse or the other.  If a bankruptcy is looming, the spouses may want to consider an agreement that either or both of them can discharge the debt in bankruptcy.  Without that agreement, a former spouse can make it difficult for a party to discharge certain debt in a Chapter 7 bankruptcy proceeding. 

Another issue that comes up: often one spouse will obtain credit in the name of the other spouse, without that spouse’s knowledge or consent.  In a case like this, the attorney for the spouse who may be facing unknown debts should conduct some formal discovery to comple the other spouse to disclose all debt obligations that he or she may have incurred in the name of the client. 

For more information about Minnesota divorce, feel free to contact me at (952) 270-7700.

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401(k) Plans and Financial Emergency

People who get divorced often have 401(k) retirement plans.  The funds in a 401(k) plan are “qualified” funds.  This means that the income tax on these funds, and income tax on the interest or gain realized by these funds, has not yet been paid.  The income tax is paid later, as the funds are withdrawn from the account.  The withdrawal usually occurs after retirement, when the person taking the funds is in a lower tax bracket. 

Typically, funds cannot be removed from a 401(k) plan prior to retirement.  Employers often give loans which are secured by 401(k) plans, but these are loans.  It is not a withdrawal from the plan.

At divorce, the assets in a 401(k) plan can be allocated between the parties.  The court does this with an order called a “Qualified Domestic Relations Order.”  While language in a QDRO can be included in the divorce Judgment and Decree, usually it is contained in a separate order, entered after the Judgment and Decree is entered.  This is not a requirement, but it is common practice. 

A QDRO is essentially an order that tells the plan  administrator to establish a new account in the name of the non-participating spouse.  The QDRO tells the plan administrator to transfer an amount of money into the name of the non-participating spouse (that is, the spouse who does not work for that employer).

Usually, the non-participating spouse can direct that his or her portion of the 401(k) asset be rolled over into an Individual Retirement Account.  This is a non-taxable event.  Again, the tax will be paid when the money is withdrawn, usually during retirement.

However, often a person will withdraw funds from an IRA before retirement.  This is a taxable event, and it is also subject to a penalty.  In addition to paying federal and state income taxes, the spouse also pays a 10% penalty.   Depending on one’s tax bracket, almost half of the IRA withdrawal could be paid to the Internal Revenue Service and the MN Department of Revenue in taxes or penalties.  So, this is not a particuarly good deal.

There is a little know provision of the Internal Revenue Code that allows the party receiving the transfer of some of the 401(k) asset to withdraw cash without paying the 10% penalty.  The withdrawal has to be made within 60 days of the divorce, and there has to be a financial emergency.  Of course, the income tax on the withdrawal does have to be paid.  That cannot be avoided.  But, with proper drafting, the 10% penalty can be avoided.

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The Future of Divorce in MN

I have practiced divorce law in Minnesota since 1992.  During that time, there have been significant changes both to the law, and also changes to the court system itself.  In my opinion, the most significant change to divorce law in the past 20 years is the change to the way child support is calculated.  Now, the denomination of “physical custody” has little meaning or impact.  A parent who wants to avoid paying child support simply argues for greater parenting time.  They tell the court that the custody label is not important, but they should be able to spend approximately equal parenting time with their children.  This in turn means they pay significantly less child support.  For better or worse, many courts seem to accept this argument.  If you are an attorney, this makes it even more imperative that, regardless of which party you represent, you carefully develop and present a compelling and cogent argument for your client’s position, whether in Early Neutral Evaluation, in mediation, at a Temporary Relief hearing, or at trial.

However, I think the most significant change in Minnesota divorce practice has not yet fully played itself out.  This change has to do with money, or more correctly, with the lack thereof.

The court system is in a financial crisis.  This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media.  I have read some of his interviews, and I have to say that I think he is right.  (I also have to disclose that, technically, I work for the Minnesota Supreme Court.  My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.”  Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)   

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota.  The court filing fee is now $400.  It could increase.  It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court.  These are the costs that are easy for people to recognize.

However, there are other costs.  The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly.  Now, judicial officers are talking about parties using private evaluators.  Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Courts are implementing steps to cut down trial time by limiting the time that each side has to present his or her case to the court.  Sometimes the limitation can seem arbitrary.

Some parties are using “Special Masters” to conduct “private” divorce trials.  This is similar to binding arbitration.  I am personally opposed to the use of Special Masters because my experience is that there is a network of attorneys and mediators who know each other and have biases in favor of each other.  A judge or family court referee is not allowed to practice law.  This is appropriate, because it takes the judicial officer out of the “network of friends” or attorneys that know each other and meet up at Bar Association meetings.  Sometimes I get decisions from a judge that I or my client disagree with.  I often tell my client that the judge really did exercise his or her best judgment, and that he or she does not have a stake in the outcome, that he or she does not have any connection to the attorneys or expert witnesses because he or she is a judge.  The appearance of impartiality is important.

I cannot say the same thing about Special Masters.  Special Masters act in the role of judge one day, and attorney the next.  They have biases, and they have commercial and financial relationships to other attorneys and expert witnesses.  These relationships can get in the way of a fair judgment.  The problem is, because of the process of self-justification that everyone engages in, a Special Master cannot always see his or her bias.  (For more on self-justification and how this negatively impacts a fair and impartial judgment, refer to the books “Mistakes Were Made (But Not By Me).”

Of course, the persons who act as Special Masters who read this entry are already in denial–saying that I do not “get it” and that while others might be biased, they certainly cannot be biased.  To those Special Masters, I say “read the book “Mistakes Were Made (But Not By Me).  Then re-read it until you get it.”  Denial is extraordinary powerful.

I predict that, in the future, more and more costs of getting divorced in Minnesota are going to be shifted to the parties.  I also think that the results of the proceeding will not be as satisfactory.  People will walk away from legitimate claims and positions because they cannot afford the cost.  The financially advantaged party will prevail, while the financial disadvantaged party will suffer.

I think this is an unfortunate, and unavoidable consequence of the lack of sufficient funding.

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MN Divorce and Extra-Marital Affairs

Fairly often I am asked whether one spouse’s extra-marital affair has an impact on a divorce proceeding.  The answer is “it depends.”

First, let me say that I have great empathy for a spouse who realizes that he or she has been cheated on.  This knowledge can be devastating.  Many people go to marriage counseling to try to restore the relationship, but often the damage done is irreversible.  In fact, when one spouse “overlooks” the fact that the other spouse has cheated, that spouse could unwittingly be teaching the cheating spouse that it is “okay” to cheat.  I am familiar with cases where one spouse gets caught and begs for forgiveness.  The other spouse forgives, they resume their “marriage,” only for the other spouse to find new evidence that the cheating spouse is still cheating.

Generally speaking, the fact of the extra-marital affair, in and of itself, is irrelevant to a divorce in Minnesota.  Minnesota is a “no fault” divorce state, which means that you do not have to prove that a spouse is “at fault” before you can get divorced.  All you need to tell the court is that there has been an irretrievable breakdown of the marriage, and the court will grant the divorce.

However, the extra-marital affair is relevant if the cheating spouse spent marital money on the affair.  I am aware of spouses who have established secret checking accounts, cashed in retirement assets, and gone into significant credit card debt in order to carry on an illicit sexual relationship that their wife or husband does not know about.  In these cases, the wronged spouse has the right to be reimbursed for the money spent on the affair. 

The extra-marital affair is also relevant if the person the cheating spouse is seeing could have a negative impact on the parties’ children.  I am aware of cases where a spouse cheats with someone who is a domestic abuser, an alcoholic, or a criminal.  A person like this should probably not have unfettered contact with the parties’ children.  I once had a case where I had to obtain a court order preventing all contact between one spouse’s significant other and the parties’ children.  I was successful in doing this, even though the spouse had moved in with the significant other.  As long as the children were around, the significant other (who was a domestic abuser and a criminal) had to stay away from the cheating spouse’s home.

If you have any questions about this or any other Minnesota divorce issue, feel free to call me at (952) 270-7700.

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MN Divorce and Guardian ad litems

In contested Minnesota divorce cases, a guardian ad litem is a person who is appointed by the court to represent the interests of children in a divorce proceeding.  Typically, the guardian ad litem does not perform a custody evaluation or parenting time evaluation.  However, he or she will participate in the process, appear at court proceedings, and indicate his or her opinion about the best interests of the children to the court.

Usually guardian ad litems are not attorneys and they are not psychologists or licensed social workers.  Many people who go through a divorce where custody is contested believe that the guardian ad litem has too much power.  They believe that a guardian ad litem can form an erroneous or flawed opinion based largely upon first impressions. They believe that once a guardian ad litem forms an opinion, they are unlikely to consider credible evidence that contradicts their opinion.

This belief is born out by research.  A very good book on this topic is “Mistakes Were Made (But Not By Me),” written by Carol Tavris and Elliot Aronson.  One of the conclusions of this book, supported by research, is that once people form an opinion, they tend to overlook contrary evidence.  Once an opinion is formed, the person engages in a process of self-justification, mostly looking for evidence to prove they are right.  I highly recommend “Mistakes Were Made (But Not By Me)” to people who are going through a divorce.  It can give great insight into the thought processes of the individuals involved.

In light of this issue, there are several steps that people who will contest custody should consider taking.  The first is to get a child into counseling with a qualified, neutral therapist.  By “qualified,” I mean a licensed psychologist or psychaitrist.  I do not mean a minister, priest, social worker, or family friend.  If the child has a good relationship with his or her psychologist, the psychologist can have input that can either influence or inform the opinion of the guardian ad litem.

Secondly, people should fully understand the temporary relief process, and they should have an attorney who knows how to present a credible and powerful story to the court.  You only get one chance to make a first impression, and my experience is that the terms of a Temporary Order that is issued after a temporary relief hearing will have a significant impact on how the case evolves.

One final note: if you are consdering these steps, you need to take them sooner rather than later.  If the status quo is favorable to you, delay helps.  If the status quo is unfavorable to you, delay hurts.

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

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What Is Discovery In Minnesota Divorce?

In Minnesota, a divorce proceeding is a lawsuit, similar to just about any other district court proceeding.  Minnesota divorce procedures are governed by the Minnesota Rules of Civil Procedure, which are court rules that regulate all legal proceedings in Minnesota courts.  Additionally, there are other, more specific rules pertaining to divorce proceedings that are set forth in the Minnesota Rules of General Practice. 

In Minnesota court proceedings, including divorce, each party is entititled to obtain any and all information necessary to prove their case to the court.  There are some exceptions (for example, communications between an attorney and client are subject to privilege), but generally speaking each side is entitled to any and all information and documents that either might be relevant, or that might lead to the discovery of admissible evidence.

What are some things a party may need to know?  A party may need to know about the other party’s income, their assets, their debts, their employment statuts, their medical status, etc.  Sometimes a party can obtain this information informally.  Sometimes they cannot.  

As an attorney, I often prepare formal requests for discovery.  I can serve written Interrogatories on a party or the party’s attorney.  Interrogatories are written questions that a party is required to answer in writing, under oath.  I will use Interrogatories to obtain basic information about bank accounts, employment history, assets, debts and other information that I need.

I can serve a written Request for Production of Documents.  This requires the opposing party to provide copies of any documents that I ask for, unless they are subject to privilege or unless there is another objection that is allowed under the rules.  I use a Request for Production of Documents to obtain copies of checking and savings account statements, check book ledgers, tax returns (both personal and business) bills, paycheck stubs, bonus check stubs, information about health insurance coverage, information about pension benefits, 401(k) plans, IRA accounts, brokerage and investment accounts, businesses owned by the opposing party, and other documents.

Sometimes I will take an opposing party’s deposition.  A deposition is a formal proceeding that usually occurs in an attorney’s office.  When I take a deposition, I serve notice on the other side requiring them to appear at my office at a particular day and time.  I hire a court reporter.  I convene the deposition and I ask the opposing party questions under oath.  The court reporter makes a written transcript of the questions and answers.  The transcript can be admissible at a court trial.

Sometimes there are third parties who have information.  Sometimes I will serve a subpoena on a bank, requiring a bank officer to appear and produce copies of account records.  Sometimes I will serve a subpoena on someone who has information important to a claim about child custody.

There are other ways to obtain information.  Feel free to call me at (952) 270-7700 for more information.

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Moving Children Out of Minnesota

After a divorce is over, one parent may want to move out of the State of Minnesota.  That parent may have physical custody of the parties’ minor children, and will probably want to bring the children along.  Regardless of whether you are the person wanting to move with the children, or the person wanting the children to remain in Minnesota, you need the help of an experienced family law attorney.

One of the most important things a good attorney does is to present a sincere, credible, powerful story to the court.  In the case of a motion to move out of state, the story has to describe the child’s important relationships and contacts within the State of Minnesota (or it has to describe the lack of the same).  The story can be told by the parent, but it can also be told by others–including relatives, neighbors, teachers, and other adults who know about the child’s circumstances.  Sometimes a professional psychologist or social worker needs to be consulted for his or her opinion.

When a party goes to court to request permission to move the children out of Minnesota, typically there is no requirement that the court conduct an evidentiary hearing with in-court testimony by witnesses.  Usually, motions to move out of state are decided on the basis of written affidavits that are submitted by the parties and by their respective witnesses.  Becaues so much is riding on them, a great amount of care needs to go into the drafting of these affidavits.

Minnesota Statute Sec. 518.175, Subd. 3 sets forth the criteria that a court is required to consider when considering a parent’s request to move out of the State of Minnesota with a child.  You can see this statute here: https://www.revisor.mn.gov/statutes/?id=518.175

Of course, this statute simply sets for the legal criteria in dry language.  A good attorney knows how to make an argument that combines the legal criteria with a compelling story in order to create a vivid picture in the judge’s mind. 

If you do not have any parental rights, and the child’s custodial parent says they are going to move, you need to act immediately.  Usually, the person without parental rights is an unwed father, and this is usually because his parental rights were never established by a court order.

Sometimes an unmarried father signs a Recognition of Parentage (called a “ROP”) at the time of a child’s birth.  This ROP is sufficient for establishing the father’s child support obligation.  However, the ROP confers no parental rights on the father.  Under Minnesota law, an unwed mother has sole physical and legal custody of her child who was born out of wedlock.  An unwed father can get physical and legal custody and parenting time, but he needs to bring a formal proceeding in court in order to do so.  An unwed father has no custody, no parenting time, and no other rights–unless and until these rights are established by a court order in a paternity or custody proceeding.

If parental rights have not been established, or if no parenting time has been awarded by a judgment and decree, the parent with custody of the child can move out of Minnesota without the consent of the other parent.

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The So-Called $99 Divorce is Probably a Scam

Its no secret that the government is running low on money these days.  The court system (which is one of the three branches of government) is running low on money too.  Recently, Minnesota Chief Justice Eric J. Magnuson gave an interivew that was published in the Minneapolis Star and Tribune, in which he commented openly on the financial crisis facing Minnesota courts.  Since, technically speaking, Chief Justice Eric J. Magnuson is my boss, I will just observe that his comments were right on.  I believe he presented the case for our court system very eloquently.

So, over the past several years court fees have been increasing.  If the future resembles the past, court fees will continue to increase.

Currently, it costs $400 to file a divorce petition in a Minnesota district court.  Some counties charge slightly higher, depending upon the amount of the surcharge for the county law library.  If each party appears in the proceeding, each party has to pay their own filing fee of $400.

It costs $100 to bring a motion for temporary relief (or to file any other kind of motion) in family court.  This is in addition to the $400 court filing fee.  Again, each party that appears in the motion proceeding has to pay the $100 filing fee.

It costs $25 to file a document by fax.  Yep, $25, even for a one page document.  Sometimes, because of time deadlines, it is necessary to file by fax.  If the fax is more than 50 pages, it costs another $25.

If the court requires a custody evaluation, this can cost quite a bit.  In the past, courts had internal court services workers who would perform custody evaluations.  Generally speaking, the courts no longer offer this service because of the cost.  So, custody evaluations are often done by professional psychologists or sometimes professional social workers.  The cost of a custody evaluation typically starts at about $5,000.  This would be an inexpensive evaluation.

So, when you see ads that advertise a $99 divorce in Minnesota, you can figure they are a scam.  It is not possible to get divorced in Minnesota for $99, when the court filing fee is $400.  For $99, all they really give you is a set of forms that you can actually get for free from the Minnesota Supreme Court at http://www.mncourts.gov/default.aspx?page=513&category=55.

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How To Deal With Jerks

This may be hard to believe, but when you are involved in the practice of family law for any period of time, you will run into your share of jerks.  Often, these are opposing counsel — men and women — who believe that the best way to accomplish something is to be either insulting or passive aggressive.  As often as not, they are compensating for their own lack of knowledge or their sense of inferiority.  Sometimes the jerk is the opposing party.  Sometimes the jerk is my client.

I don’t want my client to be a jerk to his or her spouse.  If the jerk is my client, I figure out a way to communicate to them that the process will go more smoothly if they treat their spouse with some amount of respect.  This usually works.

If the jerk is the other party, there’s not much I can do about it.  As an attorney, I am not allowed to communicate directly with an opposing party who is represented.  But, I give my client plenty of advice about how to deal with their spouse who is acting like a jerk.

If the jerk is the opposing attorney, there is quite a bit I can do about it.

Make no mistake–jerks are bullies.  And again, the jerk / bully can be a man or it can be a woman.  Being a bully is an equal opportunity personality trait.  I do not like bullies.  Long ago, on the playground in grade school, I learned that the best way to deal with a bully is to fight back.  Bullies really are cowards, when it gets down to it.

Of course, now that I am a lawyer, I fight back differently.  Usually bullies try to do their bullying in a setting where they cannot be found out.  And, usually this is in the context of a telephone call.  So, if an attorney starts acting like a jerk and tries to bully me in a telephone call, I very calmly explain to them what they are doing, what their strategy is, and why that strategy will not work.  It will not work because I understand all the cheap bullying tricks and I know how to respond.  If I communicate to the other attorney, politely, that they are wasting their breath, usually they stop acting like a jerk.

But, some attorneys continue to act like a jerk.  When they do, I explain to them that they have lost the privilege of talking to me on the telephone.  You see, there is no rule that says an attorney has to answer the phone when ever it rings.  If the attorney persists in being a jerk, I tell him or her not to call me any more, and to put anything they have to say to me in writing.  That way, I have something to bring to the Minnesota Lawyer’s Board of Professional Responsibility if the situation warrants it.  And when the jerk attorney calls, I tell my receptionist to tell them that I will not take their call and to put whatever they have to say to me in a letter.  This makes the jerk attorney’s life more difficult, and it makes his or her client pay more for attorney’s fees.  It doesn’t pay to hire an attorney who is a jerk.

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What is Early Neutral Evaluation?

Early Neutral Evaluations occur mostly in Hennepin County, Minnesota.  Many people do not know that the procedure for getting divorced in Minnesota varies from county to county.  In Minnesota, the court system is organized into “districts.”  There are 10 judicial  districts in Minnesota.  Some judicial districts are comprised of several individual county courts.  Other judicial districts are quite large and are comprised of only one county.  For example, the First Judicial District is situated south of Minneapolis and St. Paul, and consists of many counties, including Dakota, Scott, and Carver.  The Fourth Judicial District on the other hand, consists only of Hennepin County.  This is because Hennepin County is quite large.

The rules for getting divorced in Hennepin County are somewhat different than the rules in other counties.  You can find some of these rules in the Minnesota Rules of Civil Procedure.  Oddly enough, other Hennepin County rules are not published, and are almost like “private” rules known only to the judges and the attorneys who practice frequently in the county.  For example, in Hennepin County, there is a standing order signed by Judge Swenson (a judge who used to be the chief family law judge) that says that you cannot serve formal discovery until after the Initial Case Management Conference.  Surprisingly, many lawyers who practice in Hennepin County are unaware of this rule, and occasionally I have to remind them.  This rule is not followed in other judicial districts.  And, depending on the facts and issues of the case, this rule can make a difference.

There is a combined mediation and evaulation process that is somwhat unique to Hennepin County– the Early Neutral Evaluation, or ENE.  The Early Neutral Evaluation process can be used when the parties to a divorce do not agree about either custody or parenting time.  The ENE process is optional. 

Basically, the parties and their attorneys meet with two (2) mediators / evaluators who are appointed by the court.  One is always a man, the other is always a woman.  The meeting might last for a half hour or it might last for two or three hours.  If an agreement is not reached, the substance of the ENE discussions are confidential and may not be communicated to the court.

The parties and their attorneys present their arguments to the ENE  mediators / evaluators. They mediators / evaluators first see whether they can mediate an agreement between the parties.  If they are not successful, they give their “evaluation.”   They tell each parties how they believe the judge will ultimately decid the case, if the case goes to trial.  The point of this is to enourage the  parties to reach an agreement. 

Probably from the court’s perspective, the ENE process is a success.  It may result in fewer cases going to trial.  This is important to the court because there are literally thousands of divorce cases filed each year and there are about 13 or so judicial officers on the Hennepin County family law bench.  If you do the math, it becomes pretty apparent that it is not possible for all cases to go to trial.

From the perspective of a person getting divorced, the ENE process can be “fair” to one spouse and “unfair” to the other spouse.  This is because it is an unnatural interference with the bargaining process.  When an evaluator tells both spouses that spouse A will get sole custody and spouse B will get only 25% parenting time, it makes it less likely that in the subsequent bargaining process, spouse A will change his or her position.  Spouse A will only become more intransegent, more difficult to bargain with.

In other words, a divorce isn’t over until its over.  The negotiation process can take many months and there can be a lot of bargaining and give and take that goes on.  And, the parties can always avoid going to trial if they want to (and they usually do).  But, give one spouse an “official” opinion from a non-attorney, non-judge employee of the court, and the bargaining process is unfairly skewed in favor of one party.

I am concerned that the ENE process could eventually undermine the perceived value of judges.  It am also concerned that it could be seen as undermining the perceived impartiality of the court.  I believe strongly in the perception of value in judical opinions and the perception of impartiality of the court.  US Supreme Court Chief Justice John Marshall understood this concept in his landmark decision Marbury vs. Madison, 5 US 137 (1803), and I am afraid that the full value of this case is lost upon the current generation of legal practitioners.  My own experience is that people tend to obey court orders that they can respect, even if they disagree with the order.

Here’s the thing–there is a lot of nuance to divorce law.  There is a lot of nuance to the facts of each divorce case.  My own experience, practicing divorce law in Minnesota for 18 years, is that no two cases are the same.  There might be similarities, but no two cases are the same.  And, regardless of what one published case might say about a subject, I can probably find another published case that says something different.

A judge has been to law school, has practiced law, has familiarity with family law, and has presided over family law cases as a judge.  And, a judge has a sense of fairness and fair play.  A judge also has the benefit of being screened for the position (in the case of an appointment by the governor) or being elected by citizens of the county.  The ENE process could be seen as metaphorically showing that none of that matters.  That all one needs is a bachelor’s degree in social work, one can spend 15 minutes listening to one party’s story and then give an opinion that has as much value as a judicial opinion.  I am not sure I agree with this perspective. 

I have also noticed that some ENE evaluators are ignorant about important aspects of divorce law.  Of course, this is understandable because many ENE evaluators are not attorneys and in fact are prohibited by law from actually practicing law. 

Moreover, the ENE process seems to be predicated upon the unspoken premise that judges are predictable.  In other words, a social worker who has never practiced law, and who has probably never appeared in court, is going to “predict” what the judge will do.  That prediction is built into the evaluator’s advice.  Essentially the evaluator “tells” the parties that the judge will “probably” do this, so you should stop negotiating now and Spouse B should just give up and give Spouse A what he or she wants.  In my experience, “predictability” can be equated with “prejudice.”  Is someone who makes the same kind of decision all the time “predictable” in a good way, or “prejudiced” in a bad way?

Of course, if the facts were the same in every case, then predictability is good.  But, ask yourself, how many relationships do you know of where the “facts” of the relationship are identical with other relationships that you know about?  People have different numbers of children, some are boys and some are girls.  Sometimes the mother is the bread winner and sometimes the father is the bread winner.  Children are different ages and some are mature enough to express a preference about which parent they want to spend most time with.  Some children do well in school, some do not.  Some adolescent boys get along well with Mommy’s new live-in boyfriend, some do not.  Sometimes one parent wants to move–not necessarily out of state, but even a move from South Minneapolis to Blaine is significant.

I am in favor of any process that makes it more likely that parties will settle a case fairly.  But, like all attorneys, I represent only one party to a case, and what I really want is for a case to be settled fairly for the party I represent.  It is my job to bring that about.   There is a difference between a settlement and a fair settlement.  To that end, my strong preference is to work with an unbiased mediator who will not provide his or her own “evaluation,” but instead work hard to get the parties to reach a fair agreement.

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