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.

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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