In Divorce, You Don’t Know What You Don’t Know

A lot of times people call Fiskum Law, P.A., to ask whether they “need” a lawyer for their divorce proceeding.  My answer is usually “yes, you probably need a lawyer.”  That’s different than saying that you can afford to hire a lawyer.  I am not your banker and I do not know the answer to this question.  Only you can make this call.

I am attorney Dan Fiskum.  When you get divorced, I am concerned about creating a bright future for you, and not just resolving your past problems with your spouse.

Here are some times when you really do need me:

1.  Your spouse has hired a lawyer.  If your spouse has hired a lawyer, you need one too.  Your spouse’s lawyer will NOT work for you.  In fact, in order to prove to your spouse how important it was to hire a lawyer, that lawyer is probably going to take advantage of your ignorance of the law.  I do not let opposing attorneys take advantage of my clients.

2.  You have a contested custody case.  A contested custody case is mostly about perceptions.  Think about it.  Does the judge really get to know you?  Does the judge go out to McDonald’s with you and the kids in order to see first hand just what a wonderful parent you are?  No.  At a temporary relief hearing you will spend 10 minutes standing in front of the judge, who may or may not have read the paperwork first.  What you say, how you comport yourself, and what you do not say, is all very important.  If you have never done this before, you need my help.

3.  You have a case that involves payment of spousal maintenance.  If spousal maintenance is at issue, you need a lawyer.  Many people make the mistake of thinking of spousal maintenance in terms of the amount of the monthly payment.  People make this same mistake when shopping for an automobile.  Instead, do the math.  For example, a spousal maintenance payment of $2,000 per month equals an obligation of $24,000 per year.  Multiply that amount by ten years of payments, and you are looking at a total payment of $240,000, which is almost a quarter of a million dollars.  If you were involved in a lawsuit that was worth a quarter of a million dollars, wouldn’t you hire a lawyer?

4.  Your spouse has accused you of domestic abuse.  This is a big one.  Do not try to handle this on your own, because you will most likely botch it.  If a court finds that you have committed domestic abuse, in today’s political climate this could interfere with your job, your future job, your future relationships, your right to own firearms for hunting, and all sorts of things.  (Yes – you heard me right.  If you are a sport hunter and a court finds you have committed domestic abuse, you cannot own firearms and you will not hunt again for a long, long time, if ever.)

5.  Your spouse wants you to assume all of the debt.  There many pitfalls when dealing with marital debt.  A lot of self-represented people agree to assume marital debt, believing that they will discharge this later in bankruptcy.  Of course, if they had competent attorneys, they would have been told that the law does not allow this, and that if they agreed to pay marital debt, or were ordered to pay it, it is NOT dischargable in bankruptcy and that debt is going to stay with them.  Think about it.  After your divorce, you have remarried and your new spouse wants to take a winter vacation to Mexico.  You say “Sorry honey.  I’ll be paying my ex-spouse’s bills for the next 20 years.  Let’s schedule our first vacation for sometime in the year 2034.

There are many other reasons to hire a skilled and experienced attorney.  I have been practicing divorce and family law in Minnesota since I graduated from the University of Minnesota School of Law in 1992.  I have been named a “Super Lawyer.”  I am a member of the American Bar Association and the Minnesota State Bar Association.  I enjoy helping people and I will help you.  Call me now at (952) 270-7700.

Fiskum Law Office, P.A., and Minnetonka Family Law, P.A., is located near the Ridgedale Shopping Center in the Carlson Office Towers, at the intersection of I 494 and I 394, in Minnetonka, Minnesota.



MN Family Law in 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MN Divorce 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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MN Divorce and Income Tax Exemptions

Often people who divorce in Minnesota forget to address the issue of the income tax depdency exemptions for their minor children.  This issue should not be overlooked because, cumulatively, it could save a spouse tens of thousands of dollars on his or her income tax return.

From the perspective of the Internal Revenue Service, after parents are divorced, the parent who has the children in his or her care more than 6 months out of the year has the right to claim the income tax dependency exemption for the children.  However, regardless of what the IRS says, a Minnesota divorce court can award the exemptions to the parent who has the children in his or her care less than 6 months out of the year.  They do this because both parents are liable for support and both parents should be able to claim the exemptions.

If there is one child, usually courts order that the parents alternate claiming the exemption from year to year.  If there are two children, usually each parent is awarded the right to claim one exemption.  If there is an odd number of children, usually the exemption for the odd-numbered child is alternated between the parents year to year.

If a person who is getting divorced has young children, he or she could be claiming the income tax dependency exemption for 15 or more years.  If you do the math, the cumulative impact of this is worth a very significant amount of money.

Do not overlook the income tax dependency exemptions when getting divorced.

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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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