Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN

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

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The lawyers with Thyden, Gross & Callahan, LLP, authors of the Maryland Divorce Legal Crier, recently published an article entitled "Putting the Fault Back into No-Fault Divorce." They point out that despite the fact that several states on the east coast have moved (like Minnesota in the 1970's) to "no-fault" divorce, fault still creeps into the mix.

The same is true in Minnesota. While easy to simply utter "we're a no-fault state," we're not entirely no-fault. Here's a compare/contrast between they Thyden summary and Minnesota law:

Property:

East Coast. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Minnesota: We see fault creep into asset and liability allocations through the dissipation of assets, concealing of assets, or "sin spending." If a party dissipates assets (sells while divorce is imminent) the non-selling spouse will likely receive their share of that asset, on the balance sheet, as part of the ultimate distribution. If a spouse conceals assets, the court may ultimately award the concealed asset, in full, to the innocent spouse. And, if one party gambles away marital assets, or incurs substantial debt in relation to alcohol abuse, cheating or gambling, the court may allocate the financial consequences of "faulty" behavior to the "sinning" spouse. 

Custody: 

East Coast. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

Minnesota. Minnesota's "best interest standard" takes into account behavior that impedes a spouse's ability to adequately parent a child. For example, if alcoholism led to a breakdown in the marital relationship, no impact on spousal maintenance. Custody? The court is absolutely interested in hearing about it...and how the alcohol abuse has affected the children. The same is true with domestic abuse, adultery or late night partying.

Alimony:

East Coast: In each jurisdiction, the law provides a list of factors the court must consider in determining alimony. In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties. In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Minnesota: A list of factors for the court to consider, but the circumstances surrounding the estrangement of the parties is not one of the them. Nor is the question of adultery. Many of our clients are shocked ("outraged" is a more accurate description) to learn that their spouse's cheating has no bearing on an award of spousal maintenance. Might a newly-elected conservative legislature in Minnesota be open to changing the statute? Wouldn't surprise me.

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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

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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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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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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.
 

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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.

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