State Bar Association Names Brown's Minnesota Divorce & Family Law Blog to the Top 25 Minnesota Blawgs

We are pleased to announce that the editorial board of the Minnesota State Bar Association's Legal News Digest and Practice Blawg has named our Minnesota Divorce and Family Law Blog one of the Top 25 Minnesota Blawgs for 2011.

What's a blawg? Well...a blog where the lo is the law.

They write:

Here’s another example of a well thought out and nicely designed site. Minnesota Divorce & Family Law Blog co-authors Jason Brown and Jill Anderson make the site easy to navigate at a quick glance. They do a tremendous job of tagging each post. They also include podcasts which give the site a personal touch. We encourage others to follow their lead...what they offer shows a wealth of experience and easily lands them on our Top 25 list.

Thanks to the Association, and congrats to our fellow award winners. Good stuff.

Our Divorce and Family Blog launched in April, 2008. Over 200,000 visitors since. We will continue to innovate as online technology and social media evolve. We hope you find this resource helpful and invite you to contact the firm if you have any questions.

The Four Phases of a Contested Divorce in Minnesota

About half the cases we handle are more contested divorces. These are marital dissolution cases in which the litigants don’t expect to reach agreement early and, instead, need the intervention of the court system in order to reach a resolution.

These divorces typically involve four distinct segments.

The first segment of work in a contested case involves the case workup. This is where we put together the initial pleadings in the case and serve and file them. You will complete an initial questionnaire and provide documentation to us so that we can adequately move forward and understand exactly what relief is sought.

Following the service of the summons and petition, we will participate in what’s called an initial case management conference. This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. The court, at that point, might refer the matter for an early neutral evaluation. This is a process where the parties can meet with a court-appointed expert and try to settle the case before becoming too entrenched.

If matters don’t resolve at the early neutral stage, then we move into the next phase - called discovery. This is a process where we’re going to gather information from your spouse. We may do so formally, or informally.

In addition, we may elect to schedule a motion for temporary relief. This is a hearing in which the court will make a determination, on a temporary basis, of who is going to reside in the homestead, who is going to have temporary custody of the children, and what sort of temporary alimony, or child support awards, are appropriate. Quite often cases will settle following the entry of a temporary order, because the parties have a preview into how the judge views the facts of the case.

However, if the case has to continue, we will position your case for the settlement stage. We’re going to attempt to work out matters either through mediation, or some other form of alternative dispute resolution.

If we’re not able to work it out, the court will call us back in, and we will participate in a pre-trial conference, where we’re going to try one last time to get the case settled, with the assistance of the judge.

The fourth phase involves preparation for and actually trying the case. The judge has 90 days to issue a written decision following the end of the trial, and if either party is dissatisfied with the outcome, they have an additional 60 days in which to file an appeal.

Divorce Court: A Few Simple Rules to Follow

Thanks to Mark Pfenning, a divorce lawyer and author who has published many articles geared toward helping parties through the divorce process. His recent article, Divorce Courtroom Tips, provides some helpful strategies and a useful summary of the basic rules of decorum in family court. Here's what Mark has to say:

  1. Settle Some Things. This means the judge won't be in control of everything.
  2. Expect Unfavorable Decisions. There are three directions the judge can go when making a decision: Your way, your spouse's way, or the Judge's way. As you can see, two out three are not in your favor.
  3. Let Your Divorce Attorney Do the Talking. Do not speak unless asked to do so by the Judge.
  4. Respect is an Absolute. When addressing the Judge with respect by addressing him/her as "Your Honor."
  5. Don't Address Your Spouse. Never speak to or make comments to your spouse when you are before the Judge.
  6. Check Your Emotions at the Door. Do not make faces or gestures when the judge or your spouse's attorney is speaking. Judges see this and do not appreciate it.
  7. Dress for the Occasion. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
  8. Write. Don't leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
  9. Come Prepared. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
  10. Be Ready to Wait. You will sometimes wait for hours before your case is called.

Good suggestions. I would also suggest leaving all digital devices in the car. I recall a lawyer whose cell phone rang in the middle of his intense cross examination of my client in a recent trial. The more memorable impression was the expression on the judge's face.  

Podcast: Jason Brown's Recent Interview on WCCO Radio

It was a privilege to spend some time with WCCO's Esme Murphy last Saturday evening. Esme and I discussed a number of family law issues unique to Minnesota, in the wake of the pending divorce between Arnold Schwarzenegger and Maria Shriver.

On a personal note, a real thrill to share the same air as Steve Cannon, Charlie Boone and Sid Hartman, among others - if only for a short time.

Topics addressed in the interview include custody, child support, spousal maintenance, property division, no-fault divorce, common misconceptions, and the subtle differences litigants will find from county to county.

Run Time: 13:54

 

Good Lawyer v. Good Therapist: There's a Role for Both to Play

"A good therapist is less expensive than a good lawyer." I've uttered those words to many clients. 

Yes. I try to help clients gain some perspective about the dissolution process, and their feelings. I'm not heartless. I want to be there for them. But, at the end of the day, the honest truth is that my ability to provide professional advice on the emotional component of divorce is limited.

Robert Mues, divorce lawyer and editor of the Ohio Family Law Blog, recently collaborated with Donna Ferber, noted psychotherapist, and "switched roles" to discuss the importance of each other's role during the divorce process.

Attorney Mues writes:

The therapist is not trained in the law, and I am not trained in psychology. We each have distinctly different roles. A good therapist can help a client deal with all the changes in a relationship that are affected by divorce—children, parents, extended family, in-laws, and friends.  The therapist can help the client figure out priorities for the future, deal with anger issues, or help clarify why a person has quit advocating for themselves. Also, therapists can help prepare a client for Court through role playing. The therapist will work with the client to design a plan individually tailored to the emotional needs of the client.  Often times this is different from “marriage counseling."  

Therapist Ferber offers the following tips:

  1. Just because your friend had a good experience with an attorney doesn’t mean they are the right one for you. Trust your gut.
  2. Pick a specialist. While they may be more expensive per hour, they have more experience and in the long run will be both cost and time effective.
  3. Aggression doesn’t insure a “win”. An overly aggressive attorney may fan the flames of conflict rather than move toward resolution.
  4. Pick an attorney who understands this isn’t about “winning”. She/He should understand divorce is about a major change in the family and that more than the “bottom line” will be affected. A good family attorney is willing, when necessary to work with your therapist. He/she is focused on the family’s post divorce situation and understands the interconnectedness of the family does not end with the dissolution of the marriage. In short, they can see the “big picture”.
  5. A consultation is like a first date, what you see is probably what you get. Don’t pick someone who minimizes your concerns, is sarcastic or dismissive. Don’t ignore your own radar by dismissing his/her behavior in favor of excellent credentials.
  6. Don’t use your attorney as a therapist. And don’t use your therapy time to talk about legal issues. Efficient utilization of your professionals will keep costs down, provide you with better information and effective support.
  7. Don’t withhold information from your attorney because you are embarrassed. They aren’t there to judge you, but if you don’t give them the information they need, you cut down on their ability to effectively represent you. Don’t assume drinking, abuse or affairs are not relevant even if you live in a “no fault” state. Underreporting or minimizing can result in your not getting the best settlement. ALWAYS tell your attorney if there are weapons in your home.
  8. Try to stick with the facts. The emotions get processed with your therapist.
  9. Talk frankly about costs up front and what you will be charged for.
  10. Finally, be clear the court is not going to reward you for pain and suffering. Settlements aren’t based on how betrayed or rejected you feel. Keeping an objective attitude regarding the legal system can play a big part in keeping your expectations realistic.

Thank you both for your perspective.

There are other professionals we often refer clients to, including financial planners, mediators, parenting consultants, realtors, mortgage brokers and auto dealers to help with getting life back on track. Each has a unique role to play during this time of transition. It really does pay to find someone who is compassionate and understands your needs following a breakdown of your marriage. Perhaps at some point we can post insight from these folks as well.

Brown Family Law Dives Into Social Media Head First

Exposing readers to our family practice has been pretty exciting around here lately. Over the last several months we've taken the plunge, head-first, into social media. "Studio B" has been constructed (literally).

With two web sites, a blog, Twitter, Facebook, Youtube, LinkedIn and podcasts, I finally feel like we have the outlets necessary to serve a distinct group of information-seekers. 

If you want to read about our firm, you can visit our web site. If you want in-depth articles...well...you've found our blog. If you want to to take audio with you for the bus ride into work, download our podcast programs. If you're another family law professional, let's talk shop.

Our goal is simply to provide current clients, potential clients, media sources and other family law professionals with timely, useful information on divorce and family law issues, and to interact in a meaningful way:

As always, the simplest way to get to know us is through an e-mail or phone call. If you have a question, call (763) 323-6555 or write to me.

Podcast: Four Ways to the End: Pathways to Concluding a Divorce

In this episode of The Family Law Show, Jason Brown outlines the four ways in which the Court may conclude a divorce in Minnesota

Whether your case is contested, uncontested, settled, or requires a trial, certain procedural requirements must be met in order for the Court to execute a divorce decree.

Topics addressed in this pocast include include pure default hearings, default hearings by agreement, in-chambers review and matters addressed by the Court following a trial.

Run Time: 14:01

 

Hey Wiggles - Look Out: Changeville Has Arrived!

Ontario divorce attorney Brian Galbraith brought a new website to my attention today: Changeville. You might be thinking Obama, but this new resource is available to children whose parents who are going through a divorce.

Galbraith writes:

It teaches kids what happens when their parents separate in an entertaining, online way. The tour says "A walk through Changeville will tell you what to expect and help you deal with all the different feelings you might have and along the way there's all kinds of fun games and activities!"

Legal words and how kids are looked after is explained on Legal Street. On Break Up Street, kids learn what can happen during the process when their parents are going through rough times. There also is a section where kids can create some art.

What a great tool for kids.

Nothing but respect for Galbraith. Appreciate the creativity behind the crafters of Changeville. But, after a stumble down "breakup street" in a "fun online world," I found it strange to type in my feelings about being in the "messenger trap." Kind of like a visit to Epcot Center, and taking a ride on the "The Story of Meat." Something just seems out of place.

Am I off base? Anyone try it and love it?

Podcast: Two Years of Litigation in Ten Minutes: Overview of the Contested Divorce Process in Minnesota

The latest installment of The Family Law Show is ready for your inspection: "Two Years of Litigation in Ten Minutes." We provide a brief overview of how divorce cases are litigated.

The vast majority of the cases we handle settle short of trial. But, even in those situations, the litigants should understand how the process unfolds.

Topics addressed in this podcast include the difference between a contested and uncontested divorce, the initial case workup, service of the summons and petition, temporary motions, mediation, pre-trial conferences, discovery, experts, trials and appeals.

Run Time: 10:52

 

Sudden Divorce Syndrome: Two Experts Weigh In

Statistics show that there will be about a million divorces in the United States this year.  Interestingly, 75% are filed by women.  More and more, attorney Robert Mues says, his male clients are telling him that they were completely “blind-sided” by the divorce situation.  These are individuals in long-term marriages who have honored their wedding vows, are not abusers, and had not been separated.  

This scenario is becoming so common that some lawyers and psychologists have given it a name: “Sudden Divorce Syndrome.” Mues teamed with noted psychotherapist Donna Ferber to tackle the subject. Great article...and very obvious that significant thought went into it.

In drafting for the Ohio Family Law Blog, they suggest:

Our goal is to present both the legal and emotional perspectives of a trend that we are seeing in our professional practices: long term marriages ending by divorce when the wife has come to the conclusion that she has just “had enough” and that the husband is seemingly caught “blindsided” by the situation. The intent of the article is not a male versus female point and counterpoint, but rather a collaborative discourse that can provide insight into the complexity of the issues.

Check out the Sudden Divorce Syndrome: Reality of Myth article for yourself.

Featured in Minnesota Lawyer; Selected as Blog Contributor

It was very nice to be featured in Minnesota Lawyer this week, in their article announcing their new "blog for a new generation of lawyers." My posts within the selected blog contributors will focus primarily on family practice tips for new lawyers.

Several months back, Patrick Thornton spoke with me and asked if I'd like to participate in Dolan Media's new venture. They've got a great team in place (including a lawyer who went to Harvard...can you believe that mom?...I've always wanted to say "my colleague who went to Harvard) and...anyway... the blog is up and running.

My first JDs Rising post involved providing tips for lawyers contemplating opening their own firm. The job market is tight right now and many recent law school grads are opting to hang out their own shingle. I took the plunge almost eight years ago and haven't regretted it for a moment.

Podcast: Answers to Questions New Divorce Clients Ask Most

The Brown Law Offices has aired its first podcast of The Family Law Show.

Attorney Jason Brown answers the questions we're asked most often by new divorce clients.

Topics in this podcast include the length of a case, the costs of a case, venue, the need for a lawyer, contested versus uncontested divorce and concealing of assets.

Run Time: 14:59

 

New Divorce iPhone App Receives International Attention

Michelle O'Neil, a divorce attorney with O'Neil Anderson in Dallas, Texas recently posted about an app she helped create for the iPhone: Divorce Cost & Preps. She writes:

CNN Headline News featured the Divorce Cost & Prep iPhone App created by Dallas Divorce Lawyer Michelle May O'Neil and Fort Worth CPA Bryan Rice. The story originally ran on CBS11 in Dallas on Wednesday night, but by Friday The Morning Express with Robin Meade Show on CNN HLN picked up the story and it spread throughout the US and the world.

According to O'Neil, the app serves two purposes. First, a person contemplating divorce can assess the hidden and direct costs of divorce, such as the cost of providing two houses, two wardrobes for the children, or transportation costs for exchanging the children between houses. Second, the app gives divorce clients a list of information and documents to gather for their lawyer to assist preparation of their divorce.

Divorce Cost & Prep is available on iTunes for $4.99. Lots of apps for lawyers to use, but only a limited number geared toward clients. Congrats to Michelle and Bryan for their creative success.

Contemplating Using Your Kid as a Weapon During Divorce? Think Twice (Please)

Some parents choose to use their child as a weapon during divorce. Experts agree, it will inevitably come back to haunt the parent who does so - and might just destroy a kid's well-being.

The good news is that most know better and do the right thing. They understand that there are productive ways to help kids through the dissolution process. Ben Stevens, a 15-year divorce lawyer in South Carolina (and editor of the South Carolina Family Law Blog), recently cited an article that addressed how to help children adjust during period of marital dissolution. He offers the following tips: 

  1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, 'your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.'
  2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings. If you and your spouse are unable to decide the issue of custody, you may wish to offer a simply explanation like 'a judge is going to decide the time you will spend with your mommy and daddy because we both love you very much and can’t agree.'
  3. Allow the children to love both parents. Create an environment where the children can be free to love both parents. If you cringe or change the subject when your child brings up Daddy’s name, you may be sending a message to your child that you do not approve of his or her relationship with your ex.
  4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.
  5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the children’s relationship with their other parent
  6. Be supportive of your children’s activities. If at all possible, take your children to their activities when it is “your time.” On the other hand, be respectful of the other parent’s time with the children. It’s difficult to look supportive of the other parent’s relationship if you always schedule well-visits during the other parent’s time.
  7. Use good judgment before introducing your children to someone you are dating. Introducing your children to someone that you have just met or are just beginning to know can be confusing and even detrimental to your children.
  8. Take the high road when possible. This may sound contrary to the advice you might expect from a divorce attorney. However, when it comes to things like schedule changes, sometimes it is better to give a little even if the favor isn’t always returned. In the event the matter goes to court, it is always better to be perceived as the parent who is flexible and cooperative.

I agree with Ben, and would add that anyone who suspects their child is having a difficult time should contact a good family therapist as soon as possible. There are many excellent professionals in our area that we can recommend. I find parents (whether a client or an opposing party) often waiting  too long to deal with the serious issues their kids face during divorce. Feelings of fault, hatred toward a parent, sense of loss and fear of rejection are just a few of the signs to watch for.

More Questions Than Answers About "Couples on the Brink" Bill Pending in the Minnesota Legislature

What is the role of government in divorce? Is it a matter of providing a forum for deciding contested issues? Or, should the government be in the business of saving marriages? Interestingly, the Family Law Professor Blog, a national blog relating to divorce and family law issues, recently described a bill pending in the Minnesota legislature - a "couples on the brink" bill. According to Professor Andrea Carroll:

Minnesota courts are working to process divorces more quickly. Research shows the longer divorce cases drag on in the courts, the more animosity builds up, particularly if couples have children.

But some wonder if speedy divorces are too quickly rushing people to end marriages -- even couples who might have some hope of reconciling. To address such concerns, the Legislature is considering a bill that family advocates say would provide an "off ramp" on the superhighway to divorce.

"We have data on 2,500 divorcing people in Hennepin County. [They are] parents who are a lot more ambivalent and reluctant about getting a divorce than anybody realized," said Bill Doherty, a marriage expert at the University of Minnesota.

Doherty and his research team, which included a family court judge, surveyed 2,484 divorcing parents in 2008 and 2009, and found that 70 percent of couples agreed divorce was the best course of action. But in about one-third of the cases, at least one spouse wasn't sure.

Some were wavering. Others said they'd stay if their spouse significantly addressed problems such as alcoholism or infidelity, and others said they'd do anything to save their marriage.

The most likely person to be interested in saving a marriage was the person left behind. Since two-thirds of divorces are brought by wives, husbands are more often what Doherty calls "the hopeful spouse."

But the courts aren't designed for such uncertainty, said Doherty, a licensed psychologist and director of the university's Marriage and Family Therapy program.

"The way the courts view it is you have a legal right to a divorce," he said. "And just like when you show up to get your driver's license, nobody says, 'Are you sure you want to drive?'"

The Couples on the Brink bill that Doherty is championing would use an additional $5 tax on marriage licenses to develop a way to identify couples who might want to reconcile -- and improve the quality of marriage counseling they'd receive.

"They go to clergy who often don't know what to do with them," Doherty said. "They go to counselors who are sometimes not well trained in marriage counseling. And even if they do some marriage counseling, these are difficult situations."

Doherty likens it to practicing medicine in an emergency room. He said that with better training for counselors and clergy, 10 percent of couples headed for divorce might be able to restore their marriages.

Couples with a history of domestic violence would not qualify.

Divorce lawyers say there are better uses for this public money. The Minnesota State Bar Association family lawyers narrowly voted against supporting Couples on the Brink, said Pamela Waggoner, chairwoman of the bar's family law section.

"We have other programs that are wanting -- domestic violence prevention programs and programs that assist parents in successfully parenting their children as a separated couple," she said.
 

I agree with Pamela Waggoner's  perspective. As a firm with boots on the ground in local courts, it seems the money proposed for this legislative initiative could be set aside for more useful domestic abuse, co-parenting and alternative dispute resolution programs.

Is it really the job of our government to act as a counselor? Should they even question whether a person "really" wants to divorce? That's a decision personal to the individual.

If funding is to take place for any sort of counseling of married couples, it ought to precede marriage itself. Perhaps if parties to a marriage were required to participate in a mondatory series of counseling sessions (not unlike most churches offer) the divorce rate would get reduced because conflicts could be identified from the onset.

Many of our clients tell me that they and their mate are "incompatible" with each other. Wouldn't it be better to determine compatibility prior to marriage? Prevent divorce in the first place by finding a good fit for people? Be proactive, instead of reactive?

The simple answer? The State buys e-harmony and offers it free to all. They do have a wonderful compatibility system in place. Cheaper in the long run and Dr. Neal Clark Warren can finally retire in style. Chuck Woolery for governor anyone?

Curtain Closes. Lights Go Dark. Divorce Done. What Now?

"The End." The last song recorded by the Beatles, and their shortest. For some "the end" drags on and on and on, plaguing  a divorcee. James Chau, a respected divorce lawyer in San Jose California, and author of the San Jose Family Law Blog, recently cited a survey on the feelings of the parties to a divorce after the final Judgment and Decree has been entered. According to Chau:

The survey revealed that only after a year and half are divorcees really ready to move on. Six of ten people surveyed said the hardest thing to overcome was the sense of failure and 5% of those surveyed said even several years after the divorce they were still trying to come to terms. In total, a fifth said they will never truly get over a divorce and 55 percent said it was the worst thing they had ever gone through. The survey of 4,000 divorcees was carried out by the dating website www.fifties.com, which is caters to those 50 and over.

The survey also revealed startling differences in divorcees' reactions to the news their marriage is officially finished. Although 43 percent felt relieved when their judgment came through, 31 percent were sad that it was over. Another 16 percent even said they felt distraught. The article states that while it might be an average of nearly 18 months before divorcees are totally content, they start feeling better about their life after 16 months. Around this time, it appears that divorcees start dating again. Fifty-eight percent of those surveyed arranged a meeting through friends and twenty-eight percent tried online dating sites. Also, about 49 percent of divorcees would rather meet someone who has had a similar experience.

Read the entire article referenced by Chau here.

I'm not surprised by the results of this sampling. I would guess that in more than half of the cases we handle, the final hearing is extremely difficult on our clients. I can't count the number of final appearances we have made with a client who, in responding to rather simple questions from the court, breaks down in tears. Those are the times that are the toughest as a family lawyer. It's also why I choose to focus in the area. While many of my law school classmates represent insurance companies or handle tax issues (and deserve respect for doing so), I have the privilege of helping real people every single day through very difficult, life-changing situations. For me, that is personally fulfilling.

Here is my brave attempt, as an amateur psychologist (took 101 in college), to offer some advice on bringing closure following the final drop of the gavel:  

  • Recognize that it is normal to have a multitude of feelings, such as sadness, loss, guilt and anger, following divorce. You aren't strange to feel a little confused and there are many out there who feel the same way.
  • Don't fight the feelings you have. Once you accept that you aren't in a position to "control" your thoughts, you can work toward healing.
  • Accept that you may not have an "A" game in place for a while. Don't be too hard on yourself.
  • Share your feelings with others you trust, such as family, friends, clergy or therapists. Or, find a good divorce support group. We all learn the most from each other by hearing another's difficult story.
  • Stay positive. Keep in mind that things will get better as time goes on. You've already hit bottom, so the only place you can go is up, right?

Cost-Effective Methods for Dividing Items of Personal Property

In most dissolution cases, a host of assets and liabilities must be accounted for and divided. Homes, cars, boats, snowmobiles, retirement plans, business interests and other "big ticket" items are usually placed on a balance sheet and allocated among the parties, with the spouse receiving more value paying the other a cash equalizer. But what about "the stuff" in your home?

Truth be told, the Court wants nothing to do with dividing items of personal property of nominal value. If parties can't agree on how to divide "the stuff" the judge will simply order everything auctioned and divide the sale proceeds. As you might expect, at auction you'll receive perhaps ten cents on the dollar. We're talking garage sale prices. Then, you, and your spouse, will have to turn right around and purchase another iron, toaster, DVD player and living room set. Makes little sense.

The good news is that there are tried and true processes that we have utilized in assisting couples through the division of "stuff." Here's what has worked for our clients:

  • Two Lists: One of you makes two lists of items, of roughly equal value. The lists are presented to the other. The person who didn't draft the lists gets to pick which list they want. There is an incentive for the person drafting to fairly and equitably divide things or they'll get burned during the selection process.
  • Silent Auction: This is my favorite. A master list of all of your personal property is created. Each party blindly puts a dollar value next to each item. The high bid takes the item at the value listed. Once all items are bid on, the totals for each party are added up. The party receiving the higher dollar value pays the other a cash equalizer to make up the other's shortfall. Parties are free to place a high value on items they really want, but won't list a ridiculous bid out of fear of paying a large offset.
  • Arbitration: An arbitrator is basically a private judge. You pay this person, usually a lawyer, to listen to your side of things in an informal conference setting. Then, your spouse does the same. The arbitrator is given the authority to divide the entire list of items as they deem fair and equitable. Costs are saved because the parties attend the arbitration without counsel and divide the arbitrator's fee. Most couples submit to binding arbitration so that the decision of the arbitrator is final.
  • Rotating Lists: Make a master list and take turns going back and fourth until all of the personal property is divided. Flip a coin to see who goes first.

The bottom line is that usually the personal property of the parties isn't worth the money that will be spent fighting over it. It's true...we've been caught in the middle of disputes over Christmas ornaments, but not by choice. By the time all was said and done, both parties could have purchased a collection of new decor with the legal fees they would have saved by putting down the swords and agreeing to a process that would fairly, and cost-effectively, get the issue of personal property division resolved.

Staying Ahead of the Curve: 12 Proactive Steps To Take If You Are Contemplating Divorce

Once you break the news of your desire to dissolve your marriage, interesting things may start happening at your house. Critical records and valuable items of personal property may suddenly vanish. It pays to be proactive to ensure that you have all the information you will need to move forward as efficiently as possible.

The wasted time and cost associated with hunting down missing documentation can be staggering. We've handled cases where everything from an expensive diamond ring to boxes of business records have taken a bit a "vacation." We almost always find them, but not without substantial effort. In cases where they are not found, the Court will impose substantial sanctions and assume the missing evidence is favorable to you.

To help avoid the mess, we've assembled a list of 12 things you should gather to ensure that you have all of critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

  1. Copies of financial statements;
  2. Copies of tax returns;
  3. Copies of computer hard drives;
  4. Copies of insurance policies;
  5. Copies of wills and/or trusts;
  6. Inventory of safety deposit boxes, with a witness;
  7. Copies of deeds and/or titles to real property;
  8. Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
  9. Copies of appraisals for art, antiques, jewelry and collectibles;
  10. Record the contents of each room in your home through video;
  11. Copies of retirement account statements; and
  12. Copies of your spouse's pay stubs for the last few months.

Investing some time in gathering these items will ensure that your spouse cannot take advantage of you during the divorce process. The denial of the existence of an asset is a fraud upon the Court. Once your spouse knows that we have all of the key information in hand, they are far less likely to engage in bad faith conduct and be honest in their disclosures throughout the process.

Divorce Lawyers Encouraged to Gather Evidence from Social Networking Sites such as Facebook, Twitter and MySpace

Minnesota Lawyer recently featured an article by Sylvia Hseih entitled Divorce Attorneys are Missing Evidence on Social Media Sites. She reports that sites such as Facebook and Twitter contain a "treasure trove" of legal evidence - especially in divorce cases. She writes, however, that most lawyers are missing the boat.

Hseih points out that damaging messages and compelling photos can quickly lead a case to settlement if discovered and presented early.

Citing the "adultery discovery," Hseih suggests that a suspicious spouse may be armed with damaging information to bring in to court. Keep in mind, however, that Minnesota is a no-fault divorce state. Whether you or your spouse are faithful to one another isn't relevant under our divorce statutes (Hseih's article first appeared in a national publication).

There are other highly relevant uses for this information, however. Here are a few examples referenced by Hseih:

  • Confessions involving an individuals social life;
  • Photos with children in places they ought not be;
  • Photos of parties to the case consuming liquor or using drugs;
  • Income and employment information; or
  • Inappropriate sexual content

Hseih recommends looking both ways, urging lawyers to speak with their clients about the types of social networks they post on, limiting the information they provide and increasing access security to prevent their spouse from tapping in.

I encourage anyone going through a divorce to modify all of their passwords to prevent a spouse from creating a false profile or modifying information on the social sites in an attempt to cast  you in a negative light. It wasn't that long ago that a client pulled up her MySpace page to find that she was already "single" and a "swinger." Of course, her husband denied making those changes and tried to hold it against her in court. Wasn't successful, but I guess he deserves an "A" for creativity - not to mention fabricating evidence.

How Does The Court Determine An Appropriate Amount of Alimony?

Spousal maintenance, formerly known as alimony, is one of the more difficult issues to tackle during the dissolution process.  With the exception of child custody, no other issue is as personal or emotionally charged to divorce litigants.

It is quite difficult to predict exactly how much spousal maintenance the court will award a particular party.  The court will examine a host of factors, and each play a part in the decision-making process.  For that reason, alimony is decided on a case-by-case basis. 

The court will examine the standard of living established during the marriage.  Based upon that standard, it will take into account the anticipated ongoing monthly expenses of each spouse. The question for the court involves whether these alleged expenses are reasonable under the circumstances.  The court will compare the expenses against the income of each litigant.  If a litigant faces a monthly shortfall, the party will have a need for spousal support. If a litigant faces a monthly windfall, they will have the ability to pay spousal maintenance.  These elements are measured against the length of the parties' marriage, the age of the parties, the educational background of the parties and the mental and physical health of the parties.

Once all of the elements are considered, the court will determine whether an award is appropriate, how much the monthly award should be and the length of time paying party will be obligated to support their former spouse. The longer the marriage, the more likely a permanent award of spousal maintenance will be granted.  With shorter marriages, the court may consider an award of temporary spousal maintenance so that other party has an opportunity to reeducate themselves, reestablish their career path and become self-supporting.

Minnesota Court of Appeals Affirms Alimony Award of $13,000 Per Month Against Surgeon

The Minnesota Court of Appeals has affirmed a substantial spousal maintenance award.

In McCarney v. Hartleben, Ms. McCarney was stay-at-home mother who had taken some courses in an effort to obtain a degree in psychology. Dr. Hartleben worked as a surgeon, earning a net monthly income of approximately $30,000 on gross income of $600,000 per year.

Judge Stauber, in an unpublished decision, opined that the trial court did not err in granting McCarney monthly spousal maintenance payments of $13,000 conditioned on a reduction to $8,000 per month when she obtained the certification necessary to work as a licensed psychologist. Judge Stauber noted:

Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous. In order to successfully challenge a district court’s findings of fact, the party challenging the findings must show that despite viewing that evidence in the light most favorable to the trial court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.

The court did reverse and remand an award of $800 per month to Ms. McCarney to pay her life insurance premiums.

As referenced in other posts on our blog, alimony awards are based upon several factors, including the length of marriage, the financial need of the spouse seeking maintenance (comparing their anticipated income against their reasonable monthly expenses) and the ability of the spouse being asked to pay alimony to make payments to their spouse. The reasonableness of the parties' budgets is based upon the standard of living the enjoyed during the marriage.

In this case, the court indicated that the parties lived a "lavish lifestyle" and had no difficulty accepting the wife's projected budget of $13,000 per month. Given the husband's substantial earnings and the length of the parties' marriage, the court required him to pay a rather significant figure each month.

The good news for husband? Alimony payments are tax deductible. Given his tax bracket, he'll probably only suffer an out-of-pocket loss of approximately fifty-percent of the payment made to his ex wife.

Divorce Rates Surge in Recession: Couples Left to Divide Red Ink

Time Magazine's Belinda Luscombe recently published a piece entitled "Will the Market Kill Your Marriage?" So much of her article rings true in these tough economic times. I highly recommend reading it in it's entirely. She does a nice job laying things on the line.

Here are of a few excerpts:

Recession and divorce, it is said, go together like carriage and horse. Those who labor in Splitsville have several explanations for why that might be. There's the lawyer theory, that money provides the soft fatty tissue that insulates the marital skeleton; once it's cut back and people get a good look at the guts of their relationship, they want out. And there's the marriage-counselor theory, that couples who were never quite on the same page in the checkbook finally get pushed off the ledger by endless bickering over their dwindling resources. And the therapist theory, that financial worries cause stress, stress can cause depression, and depression is a total connubial buzz kill. 

The two assets that typically need to be divided are 401(k)s and the family residence. But suddenly 401(k)s aren't worth as much, and that home whose mortgage was the mother of all argument starters is not an asset at all. It can't be sold - or at least not for a price that provides money to start over. Instead of working out who owns what, lawyers and mediators are trying to figure out the fiendishly trickier conundrum of who owes what. "We're negotiating debts - not assets," says Henry Gornbein, a family-law attorney in Oakland County, Mich. "Two, three years ago, I'd be telling you that houses had equity, and you'd either be doing a buying out or selling the house and splitting whatever the proceeds were. Now it's the reverse. You go into court; the judges just don't know what to do."

Therein lies the dilemma.

Not long ago, people had lots stuff (equity in homes and retirement accounts) to divide. No more. The vast majority of homes involved in a divorce are mortgaged for more than market price (perhaps 80% of our present clients find themselves in this situation) and retirement assets are worth one-half of what they worth a year ago. Tax what's left (oh, and penalize another ten percent for early withdrawal), and then begin to discuss the $20,000 marital credit card debt outstanding. Not a pretty picture.

The good news for families (children in particular) is that we are seeing a sharp increase in a more respectful, uncontested approach to divorce. I don't know if that's because there's nothing to divide, or because people don't have the resources to litigate.

Couples seem to be in the mood to work together. Some agree to keep one spouse in the home, but both continue to split the mortgage payments and ride out the market. They might be able to sell and break even (or even yield a profit) in a few years. Others remain business partners, in a sense, renting out their home when they vacate with a plan to sell when the market picks up. Others are agreeing to let the home go into foreclosure and banking money along the way. Still others are working with the lender to arrange for a short sale.

Elsewhere in our Blog, you will find information concerning property division, home foreclosure, bankruptcy and uncontested divorce. Always best to learn as much as you can about your options going forward.

Minnesota Court of Appeals' Judge Halbrooks Offers a Trio of Unpublished Divorce Opinions

Judge Halbrooks has been busy at the Minnesota Court of Appeals. She recently issued three dissolution decisions, none of which were published. Two cases involved property allocation issues, one involved a joint physical custody award and two involved child support calculations:

  • Popel v. Popel: Minnesota Court of Appeals (Unpublished). Judge Halbrooks held that the district court did not abuse its discretion in awarding joint physical custody to the parties but remanded for a recalculation of child support and reallocation of non-marital interests.
  • Blaeser v. Fiscus: Minnesota Court of Appeals (Unpublished). Judge Halbrooks opined that the district court did not abuse its discretion by failing to modify child support following the emancipation of appellant's oldest child. 
  • Murphy v. Murphy: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in the district court's unequal allocation of marital property.

Parental Alienation Syndrome in Minnesota Divorce and Custody Disputes

The Ohio Divorce Attorneys with Holzfaster, Cecil, McKnight & Mues author the popular Ohio Divorce & Family Law Blog. They recently posted a useful article entitled "What is Parental Alienation and Parental Alienation Syndrome?"

Attorney Robert Mues notes that there are a number of different factors and circumstances that have an effect on the determination of custody. As in Ohio, Minnesota judges must consider a number of relevant factors when determining the best interest of a child. One of those factors includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court.

While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. It is not uncommon for some amount of alienation to occur when parents first separate. Usually, the alienation subsides after the parents’ transition through the separation and move on with their lives. In some cases it doesn’t, and instead it continues and escalates to what has become referred to as “Parental Alienation Syndrome.”

This disorder was first identified by Richard A. Gardner, a forensic psychiatrist in the mid-1980s, who defines it as:

A disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming or brainwashing of a child by one parent to denigrate the other parent and the child’s own contributions to the vilification of the target parent.

Mues accurately points out that there are three stages of parental alienation syndrome. These stages include mild, moderate and severe. In a mild case there are naive alienators and the perpetrator can be educated and changed. However, in a severe case the perpetrator is often delusional and their entire being is focused on destroying the other parent’s relationship with the child. Experts must be brought in to prove the alienation and, more importantly, to assist the child in gaining an accurate perspective on things.

Having handled many custody disputes involving parental alienation syndrome, I can honestly say that they are, by far, the most difficult and raw of all family cases. At the end of the day, the parent who engages in parental alienation behaviors is committing an act of abuse upon a child. The caselaw in Minnesota on this issue is rather undeveloped. But, like so many psychological theories and concepts, the public, and the courts, are becoming much more familiar with the syndrome and consequence of parental alienation.

There are some experts and jurists who have criticized the concept of parental alienation syndrome, calling it "inadmissible junk science." This author, however, questions how many times they've actually experienced and dealt with the conduct described by Gardner. Parental alienation syndrome is very real (no matter what you call it) and is an example of a parenting at its lowest and most neglectful level.

Child Custody, Child Support and Property Division on the Mind of the Minnesota Court of Appeals

The Minnesota Court of Appeals recently rendered three family law decisions, none of which warranted publication. One case involved child support issues, another custody and child support and the third property valuation and division:

  • Donovan v. Donovan: Minnesota Court of Appeals (Unpublished). Judge Shumaker held that a child support bonus provision was unambiguous and that the doctrine of laches is inapplicable to child support cases.
  • Adler v. Espinosa: Minnesota Court of Appeals (Unpublished). Judge Lansing opined that the district court appropriately determined physical custody and child support obligation.
  • McCormick v. McCormick: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in district court's valuation of real estate and denial of fee award, but reversed district court's award of 100% of the marital equity in the homestead to wife.

Discrediting Adverse Custody Evaluators

If you and your spouse cannot reach agreement on the legal and physical custody of your child, your matter is probably headed for trial. The court will be left to determine what is in the "best interests" of your child through the use of a custody evaluation and report. About 95% of the time, the court will adopt the evaluator's recommendations - unless you have a strong advocate who knows how to challenge their conclusions.

Here are a few ways to discredit the custody evaluator at trial:

  1. Bias. In personal injury cases, the insurance company will hire a doctor to examine the injured. Insurers pay thousands of dollars (now you know where your premiums go) to certain doctors who are prone to rendering an opinion favorable to the insurance company. These "independent" experts are often discredited by the plaintiff's lawyer bringing out the hundreds of prior opinions these physicians have rendered against injury victims. The same holds true in family court. Most custody evaluators have years of experience and have rendered hundreds of opinions. If there is consistency in those opinions, they carry a bias. Certain experts are prone to rendering certain opinions. Make the court aware of the bias of the evaluator and the recommendations may be discredited.
  2. Diligence. We've cross-examined custody evaluators who have spent less than an hour in the presence of our client and the children that are the subject of the action. How much can anyone learn about a familial situation in 60 minutes of observation. What if the kids were having a tough day? What if the parent is nervous about the scrutiny of the evaluator? What if the dog won't stop barking? Think of it as a movie. If someone stopped "Titanic" before the ice berg and never watched the ending, they'd think everyone arrived safely in New York and wouldn't know the whole story. Evaluators are busy people. That haste can be taken advantage of.
  3. Qualifications. Just who is the evaluator in your case? Do they have Ph.D.? How many evaluations have they conducted? Who are they employed by? What is their degree in? Have they been subject to an action for malpractice or ethics complaints? Disciplined by a professional board? Are they a licensed psychologist? All of these questions go to the foundation of the expert's opinions. Get them disqualified as an expert and the court cannot rely on their recommendations.

These same techniques can be used to discredit other court-appointed custody experts, such as a Guardian Ad Litem. No kidding - we had case in which the adverse Guardian had a degree in art history and failed to spend a single moment with our client in the presence of our client with the children (despite a statutory requirement that she meet with the parent in the presence of the children in the relevant home). We attacked her opinions on all three of the grounds referenced above.  

Eight Tax Tips for Divorcing Couples

Today we wrapped up a complex case involving property division and spousal support. The litigants thought they were miles apart from each other, only to find a new best friend in Uncle Sam. With the assistance of a terrific tax accountant, we were able to craft a settlement that took full advantage of the Internal Revenue Code.

Here are eight tax tips to keep in mind as you move forward with your divorce:

  1. Child Support. Child support is not income to the recipient and is not deductible for the payer. Keep this in mind if your spouse is seeking alimony. Child support payments that they receive are not taxable and, as a result, increase their net income each month dollar for dollar. As a result, the "need" of your spouse will be diminished and you may be able to argue that their imputed gross income exceeds their gross pay coupled with untaxed child support.
  2. Alimony. Alimony is income to the recipient and is deductible for the payer. High income earners can reduce their taxable income by paying alimony. If your spouse's tax bracket is low, the government winds up picking up the tab for a good share of the alimony obligation.
  3. Sale of Homestead. The sale of the marital homestead usually does not involve a taxable event. Capital gains (up to $500,000) from the sale of your marital homestead are not taxable if you've lived there for two of the last five years. Nor is a transfer of title to the residence, allowing your spouse to keep some or all of the equity. Many couples opt to forego alimony payments in, instead, pay a disproportionate property settlement to their spouse. In other words, they "buy off" alimony by giving a larger share of home sale proceeds, or equity, to their spouse. The result? No tax implications for either. Ideal for alimony recipients in a high tax bracket.
  4. Filing Status. The status of your marriage on December 31 of the relevant year determines whether you file as single or married. If you are divorced by that date, you file as single for the entire year. If your case appears to be coming to a close near the end of the year, best to speak with a tax preparer about the consequence of holding up at bit or expediting matters. We find that courts are usually willing to facilitate bringing matters to a close by the end of the year if tax implications in doing so are substantial.
  5. Dependents. While the law provides that the custodial parent is entitled to claim the relevant dependency exemptions, most couples agree to share them. Offering a non-custodial parent the right to claim the dependency exemption under the condition that their child support is current at the end of the relevant tax year provides them with incentive to keep current with payments.
  6. Child Care Credit. Custodial parents who incur work-related child care costs can deduct up to 30% of the cost. It is for that reason that the child support guidelines usually require a custodial parent to assume responsibility for a greater share of daycare expense.
  7. Liabilities and Refunds. Taxes owed, or refunds received, are usually treated as "marital" and are, therefore, split equally among the parties. In the heat of the moment, some spouses will intercept a tax refund and cash it without the other's knowledge. All funds must be accounted for and it is likely that if they do so their share of the final property settlement will be reduced proportionately. Because income is "marital," a tax liability is a shared responsibility.
  8. Attorney Fees. Any fees paid to a lawyer for tax advice are deductible. Ask your attorney for to break out all billable time devoted to tax issues and you can save big.

Keep in mind, the Internal Revenue Code is constantly changing and you shouldn't rely on this post as the final word in your divorce tax planning.

If you involve a CPA in the team of professionals working on your case, they are sure to attack your situation from a unique perspective and offer creative ways to reduce your tax burden - leaving more money on the table for you and your spouse. Those extra funds may just be enough buffer to get your case settled.

Anoka County Taking a Shot at Early Neutral Evaluations in Divorce Cases

Following Hennepin County's lead, and a statewide trend, the Anoka County District Court has implemented a pilot early neutral evaluation program for divorcing couples. The evaluations focus on the two key issues involved in a dissolution: custody of children and economics.

Couples can divert from the court system and meet with qualified "neutrals" who will facilitate settlement discussions and (unlike traditional mediation) offer opinions about the merits of a party's position. If successful, the process can save litigants months of emotionally-charged litigation and tens of thousands of dollars in legal fees and costs.

Five Anoka County judges have agreed to participate in the program, including Judge Sharon Hall who says that the early neutral process will allow litigants to "keep some control over their situation." The family law section of the Anoka County Bar Association has been a driving force behind the program, which provides litigants with yet another alternative to traditional litigation.

One big difference between the program in Anoka and Hennepin County involves funding. While Hennepin County covers the bulk of the costs for litigants, the Anoka County program has a very limited budget. Work is done by local lawyers, not county employees, on a sliding fee scale.

Tips for Those Seeking a Difficult Divorce

Cristi Trusler, author of the Austin Divorce Help Blog recently published a no-holds-barred article outlining nine key strategies utilized by parties who want their divorce to be the worst possible experience of their life. Her post has received great attention in Family Law Blogs from around the country.

Humorous and to the point, here's what she suggests to litigants looking to make the dissolution of their marriage as lengthy, stressful and expensive as possible

  1. Lie. It's critical that you and your attorney trust each other. So why not lie to them? That's really a great strategy.
  2. Get your kids involved. Divorce is unpleasant enough on it's own. If you really get your kids involved and start using them against each other it's easy to make it much, much worse - on you and your kids. So go ahead, get a good custody battle going. Make your kids miserable. (If you pursue this strategy, I recommend saving money for therapy.)
  3. Start dating immediately.  If you'd like to make your spouse even less willing to try to reach an agreement, then start dating - and make sure you tell them about it.
  4. Raid the bank accounts. This is a great way to let everyone know that you are the "bad spouse." Cut your spouse off from all your assets and don't let them have any money to live or to hire an attorney.
  5. Start making big purchases. Spend, spend, spend. This one does two things. First, it's just more stuff to try and divide during the divorce. Second, since money is often an issue in divorces in the first place, it can give you just a little bit more to argue about.
  6. Don't do anything. If you really want to frustrate everyone, including your own lawyer, don't do anything. Don't call anyone back. Don't respond to emails or letters or show up for meetings.
  7. Don't listen to your lawyer, get legal advice from your friends and family. This is a personal favorite of mine. I know you hired an attorney to guide you thought this legal matter, but he or she couldn't possibly know as much about the law as your aunt Dorothy who has been divorced 3 times.
  8. Hire the most expensive attorney in town. There are some attorneys in town that won't even talk to you unless you can pay at least a $25,000 retainer. If you really want to nuke all your family's financial resources while fighting with your spouse, make sure you talk to one of these lawyers.
  9. Hire the cheapest attorney in town. This is the opposite end of the spectrum. I was always taught that things were cheap for a reason.

We know (or at least hope) you're chuckling at the notion of taking Cristi up on these nine tips, but the temptation is probably there. A former colleague once told me that "divorces involve good people acting their worst and criminal defense involves bad people acting their best." I don't necessarily agree with his words of wisdom, but my memoir will have a number of anecdotes proving them true.

Source:  "How to Guarantee You'll Have a Divorce from Hell" by Cristi Trusler, published at her Austin Divorce Help blog.

Minnesota Court of Appeals Implements Mandatory Family Mediation Program

As of September 2, 2008, the Minnesota Court of Appeals will refer all family court appeals for mandatory mediation (with some exceptions for cases involving, for example, domestic violence). The program was designed to decrease costs and conflict for families involved in appellate cases while increasing litigant satisfaction.

Upon the filing of a Notice of Appeal, the Court will immediately refer litigants to mediation. Mediators available to serve include a panel of 12 retired judges and/or experienced family law attorneys. Parties will pay the costs of the mediation on a sliding fee scale.

This pilot program was initiated three years ago as the result of a meeting between Judge Harriet Lansing and William Mitchell College of Law Vice Dean for Academic Programs Nancy Ver Steegh. Ver Steegh is known for her work in the area of family law and alternative dispute resolution, and serves as an Editor for the Family Law Professor Blog. The Chief Judge of the Minnesota Court of Appeals, Edward Touissant, believes the program is here to stay, calling it a "win-win" situation.

A few other states have adopted similar programs, with a resolution rate as high as 76 percent. That's an impressive statistic, given the adversarial mindset of litigants - especially following a trial.

We've seen clients benefit from the trend toward resolving family disputes through mediation.   This new mandatory appellate mediation might just result in additional justification for working with a mediator in the very early stages of litigation and avoiding unnecessary fees, costs, time and emotion.

Divorce: 100 Tips and Resources to Get You Through

Even a "love coach" recognizes the need to plan for the worst. Blogger Christina Laun has compiled a list 100 tips and resources to turn to for support during the early stages of divorce. Link to Christina's article to check out the terrific divorce resources she has included on her Blog. We've listed (and endorse) her "tips" here:

  1. Accept that it’s over. Your divorce may have come as a surprise and you may not be the one that wants the split, but hanging on to a relationship where one partner isn’t committed is just going to make you more miserable in the long run. Start learning to accept that your marriage is over and thinking about your life after the split.
  2. Set realistic goals. Like with any breakup, it’s going to take time to get over your divorce. Set personal goals for yourself that are both challenging and realistic to help you get back on track.
  3. Get to know the laws of your state. Depending on the state you’re in, what you’re entitled to after a divorce can vary widely. Read up on divorce law in your state to find out what you’ll be facing in court.
  4. Protect your assets. You may think it can’t happen to you, but some spouses have drained joint accounts, racked up huge expenses and more when they know divorce is on the horizon. As soon as you can, dissolve joint accounts, resolve life insurance policies and make sure other valuables are in a secure, third-party location until the divorce is over.
  5. Be open and honest with your children. If you have children, be honest with them about what is going on. Avoid laying blame and talking bad about your spouse, however, as this will only serve to confuse and hurt children.
  6. Keep it civil. You may be fighting mad at your spouse but screaming at them and being unnecessarily mean won’t make you feel any better. Keep things as calm and as civil as you can.
  7. Be reasonable. Marriage is all about compromise and so is divorce. Be reasonable in what you expect to take away from it so neither of you end up with additional animosity towards one another.
  8. Seek out support. Going through a divorce can be rough and you’ll likely need the support of friends and family to get through it. If you don’t feel you can talk to them, find a support group or therapist where you can vent.
  9. Hire a lawyer you trust. Getting a good lawyer is essential to not getting taken for a ride during your divorce. Try to find someone that your friends and family can recommend or whom you feel comfortable with.
  10. Don’t settle for less than you’re entitled to. It may be tempted to cut negotiations short just to get things over with, but taking less that you deserve will hurt you in the long run. Keep negotiations calm and collected and follow through to the end.
  11. Avoid forcing children to choose sides. No matter who is at fault for the divorce, children are going to love and want to be with both parents. Don’t force children to choose sides or use them to pass on hurtful messages to your spouse.
  12. Keep yourself healthy and rested. With all the stress from a divorce it can be hard to make time to eat right, get enough sleep, and generally take are of yourself. You aren’t doing yourself any favors by doing this, however, so set the time aside to tend to your own needs.
  13. Don’t say or do anything you don’t want to show up in court. You may have a lot of choice words for your spouse, but during a divorce it’s probably better to keep them to yourself. You never know what may be used against you in court.

I Want to Annul My Marriage: What's the Standard for Annulment in Minnesota?

Like a divorce, an annulment is a court procedure that ends a marriage. But an annulment treats the marriage as though it never happened, as opposed to dissolving it.

Minnesota law provides that a marriage may be annulled if one party was not able to give their voluntary consent to the marriage at the time of the marriage ceremony because:  

  • One party has a mental illness, insanity, mental incapacity and the other party did not know about the mental illness, insanity or mental incapacity at the time of the marriage ceremony; or
  • One party was under the influence of alcohol, drugs or other “incapacitating” substance at the time of the marriage ceremony; or
  • Consent was obtained by force or fraud. 

 A marriage may also be annullted if one party is not able to “consummate” the marriage with sexual intercourse and the other party did not know this at the time of the marriage ceremony or if one of the parties was under the legal age for marriage. The legal age for marriage in Minnesota is age 18, or age 16 or 17 only with the consent of the parents, a guardian, or the court and approval of the application for a marriage license by a Juvenile Court Judge.

View From The Bench: Minnesota Family Law Judges Offer Suggestions To Litigants

The Minnesota Judicial Branch has published an exceptional brochure entitled "From the Judges of Family Court: What to Expect...Divorce in Minnesota." In reviewing, it appears to serve as a "reality check" for the litigants. Much of it I endorse. Here is some of what the Court has to say:

A divorce can be a painful and difficult experience, but if you understand the functions and limitations of the legal system, the process becomes less frustrating. It is our hope, as Judges of Family Court, that this pamphlet will give you a better understanding of the process, and help you get through your divorce with realistic ideas and goals.

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How A Legal Separation Differs From Divorce in Minnesota

Many potential clients ask about the difference between a legal separation and a divorce. It is important to consider the meaning of a "separation" and a "legal separation." Most couples opt for mere separation, as opposed to a "legal" one.

Separation simply means living apart. You do not need to file court papers to separate. The law does not require you to live with your spouse. If you do separate, you will need to work out arrangements for the care of the children, financial support, and payment of bills.

Legal Separation is a major change in the status of your marriage. To get a legal separation you must serve and file a petition in Family Court in the county where you or your spouse lives. It is a separate process from divorce. In Minnesota, you don’t need to get a legal separation before you get divorced. Legal separation takes as long as a divorce, and costs just as much if not more. In many ways, a legal separation is the same as a divorce. Both include custody, parenting time, child support, and, if appropriate, spousal maintenance (alimony) orders. All the family assets and debts are permanently divided.

The major difference between a legal separation and a divorce is that if you have a legal separation, you are still married. The wife may not resume using her former name. If you decide you want to end your marriage after a legal separation is complete, you will need to go through the court process to get divorced. Some couples choose legal separation because of religious beliefs or moral values against divorce. In other cases, there may be insurance or other financial reasons for a legal separation.
 

What Information Gathering Tools Are Available to My Lawyer?

Many of our clients are worried about the fact that they believe their spouse is hiding assets or won’t provide the information necessary to move a case along. The Minnesota Rules of Civil Procedure give divorce attorneys a series of tools that allow us to gather information in a number of ways, including:

  • Interrogatories;
  • Requests for Production of Documents;
  • Requests for Admission;
  • Depositions; and
  • Subpoenas

The first tool that we utilize involves a series of written questions to your spouse. These are called interrogatories. Your spouse must provide us with written answers to all of our inquiries within thirty (30) days. The answers must be sworn to and signed before a notary. Interrogatories are an effective tool to use in gathering financial information.
 

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Experts Involved In Divorce Cases

Depending upon the facts and legal issues involved in your divorce, a number of experts may play a role in your case, including a home appraiser, actuary, custody evaluator, business appraiser and vocational assessor.

The most common expert we employ is a home appraiser. In most cases the most valuable asset for division is the marital homestead. If one party elects to remain in the homestead we must calculate the equity in the house to determine the value of the property settlement. Naturally, the first step to establishing equity involves the determination of the market value of the property.

A typical homestead appraisal costs around $350. They take approximately one (1) week to complete. Many clients ask if a realtor’s market analysis can substitute for an appraisal. If the parties agree, a market analysis is sufficient. However, a realtor’s market analysis does not hold the same evidentiary weight as a certified real estate appraisal. For that reason, the appraisal is usually preferred.

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Free Divorce Forms Online: Should You Hire A Lawyer Instead?

Whether you decide to contact our firm or speak with another attorney, you should probably speak with a divorce lawyer about your situation before utilizing the various free online divorce forms that are scattered across the internet. My suggestion is in line with every district court judge I have encountered.

As an attorney, you can imagine I find myself in the courtroom quite often. Nearly every time I’m in court, I sit through cases in which the parties are attempting to divorce themselves without the assistance of a lawyer using legal forms they downloaded from the internet. The vast majority of these couples are turned away by the court for a failure to comply with the various legal requirements that must be satisfied in order for the court to accept their written submissions. Frustrated, having missed work for a second or third time, and getting no legal advice from the court, individuals that initially hoped to conclude their uncontested divorce without a lot of trouble find themselves extremely frustrated.

I am very open and honest with individuals I meet with who ask me whether they really need us to be involved in their undisputed case. My answer is always “Yes,” but with a rationale explanation.
 

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How Does Title Impact Property Division?

One of the more common questions I face from a potential client involves title to property - whether a car, boat, house, ATV, business, bank account or otherwise. They ask, "My spouse says that because my [insert the property interest] is not titled in my name, I am not entitled to any of it. Is that true?"

One highly unique aspect of family practice is the fact that the litigants, unlike basically all other lawsuits, often continue to speak with one another (and even live together) during litigation. Sometimes that can be productive - if the parties are discussing issues in good faith. Other times, one spouse is simply trying to play games and get inside the head of the other. My suggestion? Don't get your legal advice from your soon-to-be ex.

Here's the answer: Title to property is essentially meaningless in divorce court. Minnesota law defines marital property as anything accumulated by the parties during their marriage. Marital property is subject to equal division. The timing of the purchase, not the title, dictates the ownership interest for purposes of a divorce.

Of course, the law recognizes non-marital property, which is not subject to division. Non-marital property has a very specific definition. For the sake of this post, understand that nowhere in the definition of non-marital property is the concept of "marital title" addressed. Unless a piece of property was brought into the marriage by one spouse or received as a gift to one spouse but not the other during the marriage, the property at issue will likely be divided equally among the parties.

Sole Physical Custody & Joint Physical Custody: Is the Presumption Going to Change in Minnesota?

Depending upon your point of view, you may or may not appreciate the fact that Minnesota law contains a presumption of sole physical custody. So many potential clients ask about that. I don't believe it is a question of whether the standard will change, but when the standard will change – based upon recent legislative activity and the progressive approaches that have been taken at the Hennepin County Family Justice Center in Minneapolis.

Fellow Minnesota divorce blogger Gerald O. Williams has published a nice article about the status of a bill in the 2008 Minnesota Legislature that relates to a modification of the sole physical custody presumption to a presumption of joint physical custody in divorce cases. The legislature has opted to refer the matter for a study.

This is certainly not the first time the legislature has looked at the issue. Part of the recent child-support reforms that were discarded was a new presumption of joint physical custody. It is evident that there are many, both in the public at large, and in the legislature, who believe it is time for a shift in thinking on this issue.
 

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How Much Will Divorce Cost Me?

We have the responsibility to tell every potential client that we “aren't sure.” Now...how's that for building credibility with someone who wants to entrust their life with you for a bit?

The truth is that we really don't know how much a divorce is going to cost in the end. An attorney who tells you they do probably isn't being up front with you. A host of issues beyond our control play a part in every case. Much depends on what county your case is filed in, what the mindset of the opposing attorney is, who the judge is in your case and what issues are contested.

Divorce cases tend to fall into one of two categories: contested and uncontested. Most contested cases become an uncontested case at some point. 
 

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A Fundamental Choice During Divorce: Compromise or Stand Your Ground?

Every person going through divorce will face one fundamental decision time and again: Do I compromise or do I stand firm in my position? Certainly there are times for both. As often as possible, however, we recommend taking the high road and giving a little of yourself for the greater good of your family. This may not seem like good advice coming from a divorce lawyer. After all, isn’t it our job to stand and fight to the bitter end with sharp claws and gnashing teeth (have you seen those silly attorney yellow pages ads yet...the ones with growling grizzly bears and wolves featured prominantly)? Each case requires a little different approach.

At this point in time, compromising probably doesn't seem like the best thing to do for yourself. Nor is it the best for your lawyer's pocketbook. But, a lawyer who truly has your interests in mind will attempt to position your case for settlement and speak with you about how to approach a case in a sensible manner rather than unnecessarily drive up the costs of your case through contentious litigation. We often say that any fool (referencing the attorney) can turn a $3,000 case into a $30,000 case. Aggressive lawyering typically yields greater fees and much of the time it simply isn't necessary. 

Unfortunately, in some cases we can do nothing but litigate. We've been there many times and enjoy trying cases. This entry is not intended for parties who have been victims of severe domestic violence or whose children are in danger while in the care of their other parent. In those situations, and others, we must take a very aggressive approach. However, the vast majority of cases do not involve such situations and can be resolved much less expensively (in terms of dollars, time and emotions) in a manner that is consistent with what the court will ultimately do with the case if asked to decide. 

Consider how your soon-to-be-ex feels about things. Think about your children. Discuss solutions that work for everyone involved in the case, not just you. Most importantly, it is irresponsible to intentionally create or fuel ongoing conflict during a divorce. In our experience, clients who are bitter, angry and relentless in their approach wind up hurting themselves and living with much more pain than those who come to the table with a sense of flexibility and reasonableness. We find they are also far less satisfied with the legal process.

We are not suggesting the divorce process will be easy for you. Everyone knows that it is very difficult to make reasoned decisions in the middle of an emotionally charged situation. It is our job to help with that. We understand you may hurt because of infidelity, irresponsible spending on the part of your spouse or chemical dependency issues. But, the bottom line is that the court does not care about such things, unless they have a direct impact on the welfare of the children. For that reason, it is important to focus on the things that do matter to the ultimate decision-maker in your case.

We find the couples who resolve their case through settlement feel much better about the result. They own the agreement. They haven't been told what they are going to do some person in a black robe. They conclude their case in a much shorter time frame than expected. They have more financial resources to draw on in the future. And, most importantly, their children seem to benefit from the fact that their parents, despite the dissolution, have found a way to work things out. The experts agree that divorce is a very stressful and difficult time for the litigants. But, those same experts also agree that it is even more stressful and painful for children. The longer your case lasts, the more harm will be done to your children.
 

The Iraq War: Impacting Families Here at Home

The Minneapolis Star Tribune published an interesting article entitled "Strains of War Showing on Army's Soldiers, Equipment, Readiness to Fight." Pauline Jelinek of the Associated Press writes, "Though separate data reported on divorce rates appeared to be holding steady last year, soldiers say they are having more problems with their marriages due to the long and repeated separations."  Read the entire Minneapolis Star Tribune Article concerning military families and the effect the Iraq War is having.

How an Order for Protection Impacts a Divorce

A host of implications follow the issuance of an Order for Protection in Minnesota when a marital dissolution action is pending or will be filed:

Marriage dissolution petition. A petition for dissolution of marriage or legal separation must allege whether an OFP that governs the parties or a party and a minor child of the parties is in effect and, if so, the district court or similar jurisdiction in which it was entered.

Custody disputes. In a proceeding where two or more parties seek custody of a child, the court must consider and evaluate all relevant factors in determining the best interests of the child. One of the relevant factors set forth in Minnesota law is the effect on the child of the actions of abuse that has occurred between the parents or the parties. When joint legal or physical custody is contemplated, the court must consider whether domestic abuse has occurred between the parents. If domestic abuse has occurred between the parents, the court must apply a rebuttable presumption that joint legal or physical custody is not in the best interests of the child.

Parenting plan. Upon the request of both parents, a parenting plan may be created in lieu of an order for child custody. A parenting plan must include a schedule of time each parent spends with the child, a designation of decision-making responsibilities, and a method of dispute resolution. The court may not require a parenting plan that provides for joint legal custody or the use of dispute resolution processes (other than the judicial process) if the court finds that either parent has engaged in acts of domestic abuse or child abuse. In determining custody, a court must consider a finding under the Domestic Abuse Act or under a similar law of another state that domestic abuse has occurred between the parties.

Parenting time. Upon the request of either parent, the court must grant parenting time on behalf of the child and parent to enable them to maintain a parent-child relationship that will be in the best interests of the child. If the court finds, however, after a hearing, that parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court must restrict parenting time and may deny parenting time entirely, if the circumstances warrant. If a parent requests supervised parenting time and an OFP is in effect, the judge or judicial officer must consider the OFP in making a decision regarding parenting time.

Modification of parenting time. If a parent specifically alleges that parenting time places the parent or child in danger of harm, the court must hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time. The court must modify an order granting or denying parenting time whenever modification would serve the best interests of the child. Parenting time may not be restricted unless the parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development or the parent has chronically and unreasonably failed to comply with court-ordered parenting time.

Additional parenting time to provide child care. The court may allow additional parenting time to provide child care while the other parent is working, subject to reasonableness and the best interests of the child. In making this determination, the court must consider whether domestic abuse has occurred between the parties.

Move to another state. If a parenting-time order is in effect, the court must look at the effect of domestic abuse on the safety and welfare of the child and the parent when considering a request from a parent to move a child to another state. The burden of proof is upon the parent requesting the move, except that if the court finds that the person requesting the move is a victim of domestic violence, the burden of proof is on the parent opposing the move.

Custody and parenting time of children to unmarried persons. A proceeding by a father whose paternity has been recognized under Minnesota law to petition for rights of parenting time or custody may not be combined with a proceeding under the Domestic Abuse Act. Also, a petition by certain other individuals (e.g., grandparents or a person with whom a child has resided) for visitation rights may not be combined with a proceeding under the Domestic Abuse Act.

Participation in a parenting plan when a person is convicted of certain offenses. If a person seeking child custody or parenting time has been convicted of an applicable crime, the person seeking custody or parenting time has the burden to prove that custody or parenting time is in the best interests of the child. This provision applies if the conviction occurred within the preceding five years; the person currently is incarcerated, on probation or under supervised release for the offense; or the victim of the crime was a family or household member. In these cases, the court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child. Also, if a person who has court-ordered custody of a child or parenting-time rights is convicted of an applicable crime and no action is pending regarding custody or parenting time, the sentencing court must refer the matter to the appropriate family court or action. The family court must:

  • Grant temporary custody to the noncustodial parent, unless it finds that another custody arrangement is in the best interests of the child; or
  • Suspend parenting-time rights, unless it finds that parenting time with the convicted person is in the best interests of the child.

Proceedings under this law must be expedited. The defendant has the burden of proving that continued custody or parenting time is in the best interests of the child. If the victim of the crime as a family or household member, the standard of proof is clear and convincing evidence.

Temporary orders and restraining orders. A temporary order in a proceeding brought for custody, dissolution, legal separation, or related matters may not vacate or modify an order granted under the Domestic Abuse Act restraining an abusing party from committing acts of domestic abuse. Upon proper motion the court may, however, hear a motion for modification of an OFP concurrently with a proceeding for dissolution of marriage.

Guardian ad litem. In all child custody, marriage dissolution, or legal separation proceedings in which custody or parenting time of a minor child is an issue, the court must appoint a guardian ad litem if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect. The guardian ad litem must represent the interests of the child and provide advice to the  court on custody and parenting time.

Divorce Mediation and the Role of a Mediator in Marital Dissolution Cases

When people mediate, they bring their conflict to a place where they try to settle their dispute. To assist with the process, an impartial third person, or "mediator" helps them reach an agreement. The mediator does not take sides or make decisions. Rather, he or she should be fair to all parties and help them find a solution.

More and more individuals are trying to resolve disputes through mediation. While this process can occur without the assistance of professionals, sometimes problems arise, and individuals need to seek counsel or advice. Often during divorce, individuals need to work out one or many problems with the other spouse. When they ask a mediator to help them solve a problem, they buy into a process that allows a trained third party to use facilitative skills to help them resolve their conflicts.

In certain situations, courts will require couples to mediate. This is called court ordered mediation. A judge may order couples to mediate certain issues that are difficult to resolve. For resolving parenting time conflicts, a judge has the discretion to assign an expediter to help couples set up a visitation schedule for their children.

When couples seek mediation voluntarily or by court order, they are trying to resolve some routine problems that come up in divorce. Problems that people bring to mediation may include visitation, child support, parenting responsibilities, spousal maintenance (alimony), property division, debt division, and/or division of financial assets. The opportunity to mediate allows parties to take the time to address all their concerns and, with the mediator's help, to reach a workable compromise.

People often prefer to mediate rather than go to trial. Individuals may mediate before separation, and before, during and after the divorce process. In fact, a final divorce decree can state that for future conflicts, parties agree to first seek mediation to resolve problems that come up after their divorce is final.

Mediation may not be a good choice if

  • A person or his/her children have been verbally, physically, emotionally or sexually abused by the other person;
  • One person fears the other person or doesn't trust the other party to be fair or honest ;
  • One person is not ready emotionally to mediate;
  • The mediator is not treating either party fairly;
  • One person has difficulty making decisions; or
  • There is a power imbalance the mediator cannot neutralize.

 

Divorce: Putting Children First During the Process

Divorce is a stressful, significant occurrence in the life of all who are involved. The impact of divorce upon children cannot be ignored. Reputable divorce attorneys, and, more importantly, the Court, will put the interests of the children at  the top of the priority list.  Here are a few key points and suggestions to keep in mind as you move forward:

Keep Communication Open With Your Spouse/ Former Spouse. As long as children are involved, you and your former spouse will have to work together. Your children will suffer to the degree that you and your former spouse cannot communicate or cooperate.

Get Professional Help To Deal With Your Emotions. Please do your best to keep emotions out of the case. Your feelings of anger, pain, and betrayal are understandable, but expressing them inappropriately in court may interfere with your ability to provide a judge with the information they need. If you have trouble with the hostility, anger, or depression that often occurs in divorces, don’t hesitate to get counseling to help you through it. A good counselor can help you, and your children, get through this difficult time and avoid having the anger become counterproductive.

Encourage and Support Parenting Time. If you are the custodial parent and the court has ordered parenting time between your children and your ex-spouse, you have a duty to encourage parenting time. You must do more than just stay out of the way or leave the choice to the children. Encourage your children to see your former spouse frequently and to enjoy the contact. Never use support or parenting time as a lever or bargaining chip in dealing with the other parent. However, if mental health, chemical dependency, abuse or other issues arise and you think your children are not safe with your ex-spouse, seek professional advice on what to do.

Give Your Children a Chance. The way you and your spouse handle your divorce will have an enormous impact upon your children. If you argue and fight, their problems and pain will be magnified. By acting reasonably, you can help your children through one of the most difficult events of their lives.

Family Court Trials: What to Expect

In Minnesota, divorce and family cases are tried to the court, not to a jury. This usually results in significant cost and time savings for each of the parties.  For example, a case that might take a week to try to a jury may conclude in half the time through the use of a court trial.  While some advocate for the use of juries in family court, most practitioners believe that bench trials are more appropriate. The court is in a much better position to ascertain the legal merits of the arguments of counsel without drawing on emotion, as jurors typically do.

A family court trial is very different than you may have seen on television.  There are no large audiences or surprise witnesses.  The process is quite controlled and deliberate. The initiating party, called the "petitioner," presents his or her case first. This may include testimony from acquaintances, family members, experts and others.  Once the direct examination of the petitioner's witnesses concludes, the opposing party's ("respondent") lawyer will have an opportunity to cross-examine them. Once the cross examination of all petitioner's witnesses has concluded, respondent will have an opportunity to present witnesses which the petitioner will have an opportunity to cross examine.

Opening and closing statements are somewhat limited in most family court trials.  Because the judge is the decision-maker, there is no need to explain to the court the concept of a burden of proof, the trial process or explain to the court how to digest the information that  will be presented.  Closing statements often take place in writing.  However, every judge differs in thier preference.

Once the trial concludes, the Court has 90 days in which to render a decision.  The decision is put into writing, filed with the court administrator and delivered to the parties and counsel.  Once the decision is received, either party may elect to file an appeal.  This must be done within 60 days from the entry of the order.  If an appeal should follow a trial, you may expect at least one year to pass until the Court of Appeals affirms or reverses the District Court.

What to Expect During An Intitial Consultation

Although divorce is quite common in our society, we understand that you probably haven't been through it before.  Perhaps the most difficult decision in the entire divorce process is the one that you will make prior to contacting an attorney - the decision to dissolve your marriage.

Once you have determined this is the appropriate step for you to take, you may find yourself puzzled about where to turn. It is likely that you will speak with several attorneys to get a sense of the various approaches they may take in your case and to see if their personality is compatible with yours. At some point, you'll need to decide whether meeting with an attorney as part of an initial consultation is right for you.

We have the privilege of meeting with potential clients quite regularly. During our free initial consultation we try to gather some basic facts about your situation, provide some guidance as to the options that you may face, what the costs and timeframes are with each option and answer any questions you may have about the divorce process, our qualifications to handle the case and our opinion about the merits of your situation. Of importance, we determine together whether it is most appropriate to treat your case as a contested matter or an uncontested dissolution. 

A typical consultation lasts approximately 30 minutes and takes place in our office or over the telephone.  All information shared within the consultation remains strictly confidential and cannot be shared with anyone.

Toward the end of the consultation, we try to get a sense of where you are at with things.  Many of the folks we meet with are just trying to get a broad perspective on what is to come, while others are ready to proceed with the action itself. We are not here to put pressure on anybody. However, if a potential potential client is ready to retain the services of our firm, we provide them with an in-depth client questionnaire to complete and return to us at their convenience.  This allows us to have the key information necessary to properly represent them as we move forward.

The Concept of No-Fault Divorce

Minnesota is a no-fault divorce state. A divorce will be granted in Minnesota without the necessity of proving that one of the parties is guilty of marital misconduct. In earlier times, a party to a divorce was required to demonstrate that the other spouse was at fault for causing a breakdown in the marriage. Adultory was by far the most common basis, but others included domestic abuse, abandonment and an inability to consumate the marriage.

Today, a party to a divorce in Minnesota must merely demonstrate that there has been an "irretrievable breakdown" in the marital relationship. One spouse must simply acknowledge as much, and the court will grant their request to dissolve the marriage. A relatively low threshold - and a tough pill to swallow for those who feel that there is no "justice" in their case unless the court takes into account marital misconduct.

Potential clients often ask, "Should I fight the divorce?" Yes, if you intend to do so outside of the legal arena through counseling or therapy. Once it is obvious that the marriage cannot be saved, your resistence should be limited to that which is necessary to obtain a favorable court order. Not wanting the divorce can be used as leverage against your spouse if they are anxious to conclude matters. Often, the impatient spouse will buy a quick resolution by making an extremely attractive settlement offer. This strategy should be balanced against overdoing it. If you are fighting the dissolution process out of anger or spite, you are likely to cause significant economic and emotional harm to you, your spouse and your children.