Discovery - Minnesota Divorce & Family Law Blog

The Four Phases of a Contested Divorce in Minnesota

Jason Brown — Mon, 09 Jan 2012 20:45:43 -0600

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.

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

Jason Brown — Fri, 03 Sep 2010 20:52:07 -0600

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

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

Jason Brown — Tue, 07 Jul 2009 20:15:19 -0600

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.

The Use of Private Investigators in Minnesota Divorce Cases

Jason Brown — Mon, 26 Jan 2009 20:09:26 -0600

Do the right thing...even when no one is looking. Great advice from Greg Cook, one of the top private investigators in the country (and, thankfully, stationed right here in the Twin Cities). Greg and I had lunch the other day and engaged in a long discussion about the uses of a private investigator in family law cases despite the fact that Minnesota is a no-fault divorce state.

In terms of property issues, some spouses falsely assume that they can hide assets from the other. Divorce fraud is perpetrated when one party fails to inform the other party of all assets one owns. All searches conducted by Greg and his staff abide by laws and regulations set forth in the Fair Credit Reporting Act, The Fair Debt Collections Practice Act, and the Gramm-Leach-Bliley Act (GLBA). Despite these hoops, they are able to locate bank accounts, cars, homes, boats, business interests, securities and any other tangible property interests held by your spouse.

Individuals asked to pay alimony often under report their income - in an attempt to persuade the court to believe that they don't make enough money to afford to pay. Similarly, a spouse seeking alimony may also under report their income - in an attempt to persuade the court to believe that they don't make enough money to meet their monthly expenses. Investigative methods can prove whether a subject has a place of employment not being reported or there is co-habitation involved (which could decrease alimony and monetary support decisions made by a court based on reduced financial need in your spouse).

Infidelity may be proven through surveillance. Keep in mind, the act of cheating is not a basis to seek a disproportionate award of marital property or custody of your kids. However, much can be learned about a person by knowing the company they keep. Does your spouse's lover have a criminal record? Are your children being neglected while your spouse is out with someone else? If the children form a relationship with this person, what sort of home environment will they be subjected to? Answers to these questions are relevant to the court in determining what is in the best interest of your kids.

In addition to information relating to your spouse, investigators can help with trial preparation in the form of locating and interviewing witnesses, conducting public record searches, service of process, paternity testing and other background investigations concerning individuals associated with a case.

Our firm has retained Greg in numerous cases and the results are always amazing. He consistently provides us with reliable information that might otherwise have taken months to uncover - if we were ever able to recover it at all.

What Information Gathering Tools Are Available to My Lawyer?

Jason Brown — Wed, 28 May 2008 16:50:38 -0600

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.

]]>In addition to interrogatories, we typically request that your spouse produce documented evidence of your financial situation through a request for production of documents. This will include a request for recent tax returns, bank statements, retirement statements, brokerage account statements, and any other items that may provide information that will be useful to us in ascertaining the values of various assets that will be divided.

As the case progresses, we always hope to narrow the issues for trial. One of the tools at our disposal for doing so is called a request for admission. These are questions that are framed in a "yes or no" format, asking your spouse to either admit or deny certain things. Items that are admitted by your spouse will have little, if any, time devoted to them at the trial. This is an effective tool for reducing the length of a trial and, therefore, the costs associated with a trial.

In addition to written discovery, we sometimes take the deposition of your spouse. Typically, depositions are reserved for cases in which your spouse has provided vague or evasive answers to our written discovery. A deposition involves asking questions of your spouse, who is placed under oath by a court reporter and recorded.

The benefits of a deposition are plentiful. While litigants have much time to think about the precise manner in which they want to respond to written requests, they are not afforded the same luxury during an impromptu inquiry on certain issues. The testimony offered by your spouse is given the same weight as testimony offered in the courtroom. In other words, if they contradict themselves in the courtroom, we will use their earlier testimony as impeachment material.

Finally, we frequently use subpoenas to gather information and documentation from third parties. This may include credit card companies, mortgage lenders, realtors, appraisers and others. However, in divorce court, subpoenas are rather rare. Pursuant to the Rules of Civil Procedure, we must afford your spouse every opportunity to produce the documents requested on their own before a subpoena may be utilized.

The Concept of No-Fault Divorce

Jason Brown — Thu, 21 Feb 2008 21:08:24 -0600

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.