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.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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