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.

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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