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.

These are just a few of the primary documents that you should set aside.  Fiskum Law Office has developed a comprehensive list of necessary divorce documents and complimentary copies are available upon request.  Just send an e-mail request through this website.

Keep in mind that you should not open your spouse’s mail and you should not open his or her e-mail or other password-protected Internet accounts.

If you can assemble these documents before starting the divorce, you will save time and money.  During the divorce p0roceeding, the parties and attorneys can engage in a process called “discovery.”  Essentially, an attorney can formally demand that an opposing party produce copies of any documents that might lead to the discovery of admissible evidence.  All of the documents described above are relevant to a divorce proceeding and would be have to be produced.

The problem with discovery is that it is expensive.  It often takes hours or days to respond to formal discovery requests.  Also, it is difficult to obtain a document if it has already been destroyed.  You can get copies of some documents (summaries of tax returns, copies of bank statements, etc.) but some documents are not easy to get, once they have been destroyed.  This includes documents like check book ledgers, documents relating to the purchase and sale of a home, etc.  Also, it is very difficult to subpoena documents that are kept out of the State of Minnesota.

If you have any questions, feel free to call me – Dan Fiskum – at (952) 270-7700.  I cannot give specific legal advice over the telephone, but I am happy to set up a free consultation to discuss your divorce case.

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

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

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

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

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

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

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

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

Here’s the deal: in Minnesota, if you are the father of a child born out of wedlock, you have no parental rights unless and until a district court enters an Order granting these rights.  You do not share legal or physical custody, you do not have the right to parenting time, you do not have the right for the child to have your last name, etc.  To repeat – you have no parental rights unless and until a district court enters an Order granting these rights.

What about the Recognition of Parentage that the father signed when the child was born?  The Recognition of Parentage gives the mother rights and it gives the county authority rights.  It gives them the right to make the father pay child support without a court proceeding and order to determine parentage.  Thats all that a Recognition of Parentage does.  It “gives” the father the obligation to pay child support, but no other rights.

Why is this?  Because maternity is a matter of fact, paternity is a matter of opinion.  Under Minnesota common law, which has been incorporated into statute for decades, if parties have a child and are not married, the mother has sole physical and sole legal custody, and is entitled to receive child support from the father.

So, what should a father do?  A father, who wants to be involved in his child’s life, should bring a proceeding to establish parentage (if he did not sign a Recognition of Parentage), physical and legal custody, parenting time, and child support.  Usually a proceeding like this can be resolved by an amicable agreement between the parents.  The agreement is submitted to the court and the court enters an order based on the agreement.

Usually, but not always.  If there is no agreement, in Minnesota there are various mediation and evaluation processes that the parties can go through.  If there still is no agreement, then the court decides.

There are things that a father can do to greatly improve his odds of success.  Contact me if you want to know more.

Here’s the background: in Minnesota, assets acquired during a marriage generally are considered “marital” property.  Exceptions include inheritances, gifts made individually to one spouse and not to the other, and some components of personal injury settlements.  There are a few other exeptions.

In Minnesota, marital assets, including retirement assets are subject to an equitable division.  This includes retirement assets, including pension plans, 401(k) plans, IRAs, Roth IRAs, and other types of assets.

Generally speaking, IRAs and Roth IRAs can be divided rather simply, with a roll-over from one account to another account (in the name of the spouse receiving the asset).  Because of the way the internal revenue code is structured, pension plans and 401(k) plans require a more detailed treatment.  I believe this is because pension plans and 401(k) plans involve pooled assets.

To divide a 401(k) plan or a pension plan, the court needs to enter something that in Minnesota is called a “Qualified Domestic Relations Order.”  To put it simply, this is an order from the court to the plan administrator, telling the plan administrator to take a particular action, that is, to transfer all or part of an asset from one spouse’s name into the other spouse’s name.  (Keep in mind that this is an oversimplification, its a little more complex than this in real life.)

In Minnesota, the abbreviation for Qualified Domestic Relations Order is “QDRO.”  Once a QDRO has been entered by the court, it is served on the plan administrator.  The plan administrator then follows the directive of the recipient in either establishing a new account or transferring the assets.

Once the QDRO is approved by the court, it is final.  If a spouse receiving an interest in a pension plan or 401(k) remarries, he or she does not lose the benefit of the retirement asset that was transferred to him or her by a QDRO.  The property division became final at the time of the divorce.

I am aware of some state in which a court can require a parent to pay for their children’s college tuition as part of a divorce judgment and decree.  In Minnesota, courts do not have the legal authority to do this unless the parent or parents agree.  If a parent does not agree, then a Minnesota court cannot order that parent to pay for their children’s college tuition.

The reason for this is simple.  In Minnesota, a child is considered a child until he or she has attained the age of 18 and has graduated from high school, or up to age 20 if still in high school school, or married, joined the military, or otherwise emancipated.  Once any of these events occurs, the child becomes an adult.  The only exception to this is that a child who is developmentally disabled to the extent that he or she will not be able to become self-supporting can remain a “child” indefinitely.

Child support is an obligation of a parent to support his or her child.  Parents are not obligated to support their adult children.  Often parents choose to do so, but in Minnesota, the law cannot compel them to do so.  This means that a court cannot compel a parent to pay for the college tuition of his or her adult child.

Sometimes parents voluntarily enter into an agreement that allows the court to order them to pay college tuition.  Generally, I do not think this is a good idea, especially if the children are younger children.  It is simply too difficult to predict far into the future to know whether such an agreement is a good idea.  And of course, a parent can always voluntarily pay for his or her child’s college tuition, regardless of whether a court order requires it.

For parents who do agree to an order, I advise them that the order should have a limited dollar amount and should be contingent on the child’s attaining a particular grade point average.  A parent does not want to be stuck in a situation in which he or she has to pay exorbitant tuition for a child who is failing every class because he or she parties too much.

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.

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

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

A few years back, the Minnesota legislature created a set of rules that have been incorporated into what is known as the “Minnesota Child Support Calculator.”  You can see the MN calculator here: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx  This is the calculator as it appears on the MN Department of Human Services website.

Once the amount of parenting time is established, and once the parties’ incomes are known, the calculation is pretty “automatic.”  However, if you are a concerned parent, if you are a parent who, after the divorce, plans on spending as much time with your child as you can, you need to know that the amount of parenting time you receive has a dramatic impact on whether you receive, or pay, child support.

If you have parenting time between 45% and 55% of the time (that is, about half of the time) and your income is about the same as that of your spouse, then you will likely not have to pay very much child support.  If you have parenting time less than 45% of the time, then the odds are that you will have to pay child support.

This is a factor that you should take into account when negotiating parenting time.  I am not suggesting that this is the only factor.  Obviously, there are others: what is in the child’s best interest, what is your work schedule, what is the other parent’s work schedule, how old are the children, etc.  But, many people enter into a 50 / 50 parenting time arrangement, expecting that the other parent will actually be a parent 50% of the time, only to find out that the other parent doesn’t, and that costs associated with parenting time increase significantly.

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

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

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

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

More about this in subsequent posts.