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

More and more Minnesota counties are providing divorce litigants with an opportunity to resolve their financial issues through a process known as "Financial Early Neutral Evaluation." Settlement success rates in the FENE model are astonishing - as high as 75% in some jurisdictions.

An FENE involves a half-day session (or two, or three, or four) with a court-appointed neutral. This neutral typically is an experienced family law attorney, or a CPA familiar with the financial issues involved in a divorce. The parties, and their lawyers, sit down with the evaluator very early in the case - in an effort to catch people before they become too embroiled in conflict, or stuck in their position.

The process begins with the exchange of information, to ensure that there has been a full and fair disclosure of all income, assets and liabilities. A balance sheet is often created, which defines the universe of assets and debts, attributes value, provides a basis for the value, carves out any non-marital claims, and then allocates the relevant item to one of the parties. Once all allocated assets and debts are added up for each litigant, the cumulative value for each should be equal. This is typically the least controversial portion of the FENE, but can take some time.

The more controversial portion of the FENE involves the issue of spousal maintenance. With the assistance of the evaluator, the income and budgets of the parties will be scrutinized. A range of possible outcomes may be discussed, and recommendations may be made by the evaluator concerning the amount, and duration, of alimony in the event that the judge is left to decide the issue. Settlement discussions begin with that opinion as a backdrop.

Why does FENE work so often? A few points:

• The parties have direct conversation with one another, and the evaluator, in a natural way. A far cry from the robotic "question and answer" method of introducing evidence during a trial.
• The rules of evidence go out the window at an FENE. Any issue is up for discussion, empowering participants to voice their real-life concerns.
• Emotions may be taken into account at an FENE. Issues concerning "fairness" and "hurt" may be addressed as part of the process. Frankly, the law of "no-fault divorce" precludes alot of this in the courtroom.
• The process can be therapeutic. People feel like they can speak their mind, and they are listened to. Sometimes all a party needs is to be heard by someone. 
• Spouses have to look each in the eye as they discuss the issues. Very different from sitting 25 feet apart in the courtroom, facing front.
• There is a real sense that the parties can "get it done" during the process. Litigants believe that closure has real value, and may be worth a compromise.
• The process is a respectful one. Most evaluators know how to keep tempers from flaring.
• The evaluators, not the lawyers, control the agenda. Both parties feel they are on a level playing field. 
• Opinions matter. Litigants afford substantial weight to the perspective of the evaluators. They know the evaluator has no stake in the outcome, and the experience to back up their opinions.
• The neutrals are forced to "show their work." What I mean is that the parties are literally walked through each of the elements of the case, together, and hear the same thing at the same time. They see how the opinions of the evaluator are created right before their eyes, giving them more credibility.
• The surroundings are comfortable. There are no robes, no gavels, no court reporters, and no security. Just people sitting around a table, with their favorite beverage, talking.

As time goes on, I suspect the FENE process will gain statewide acceptance. Most of the counties in the Twin Cities metro area have adopted such a program. Why wouldn't they? With a 3/4 reduction in divorce litigation, everybody wins....except those lawyers whose practice model is based on "dog fight" mentality. But, who's feeling sorry for them anyway?

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"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.

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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

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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?

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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 vast majority of marital dissolution cases settle short of trial, often through mediation. During the mediation process, a neutral third-party will meet with the litigants, and their attorneys, to attempt to find compromise on disputed issues. Topics for discussion often include:

• Child Custody;
• Parenting Time
• Child Support;
• Property Valuation;
• Property Division;
• Debt Division;
• Spousal Maintenance; and
• Attorney's Fees

Depending upon the preference of the mediator, and the parties, the mediator may work with the participants in one large group, or may bounce back and forth between two conference rooms.

The mediators that we utilize are experienced family practitioners with specialized training in alternative dispute resolution. Fees for mediation are typically split between the parties. Mediators charge an hourly rate for their services.

Mediation is a much less expensive option than traditional litigation, and leaves the parties in control of the case outcome. The case may be resolved much quicker and the relationship between ex-spouses tends to be much more respectful after reaching a collective settlement. Children are the direct beneficiaries of this improved level of communication.

For these reasons, we strongly encourage our clients to participate in the mediation process. Our commitment to those we represent involves taking the least expensive road to resolution first. Certainly, if we can't settle a case, we're prepared to take it to trial. But, most clients appreciate our common sense approach to concluding the dissolution process. 

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"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?

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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.

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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.

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We've posted a number of entries concerning the benefits of settling a divorce as opposed to litigation. Even if you need to litigate, more than 95% of cases will settle before trial.

The following settlement checklist will come in handy as you attempt to figure out if you've got all of your bases covered:

1. Legal Custody: Joint or sole legal custody?
2. Physical Custody: Joint or sole physical custody?
3. Routine Access Schedule: Where will the children be on a given day?
4. Vacation Access Schedule: How many weeks of uninterrupted vacation time with the children?
5. Holiday Access Schedule: Who do the children celebrate with in a given year?
6. School-Year Breaks: Where will the children spend spring break or President's Day, for example?
7. Telephone Contact: What are the rules concerning communication with the children by phone?
8. Transportation: Who will transport the children for parenting time exchanges?
9. Basic Child Support: What is the amount of guideline support to be paid?
10. Medical/Dental Child Support: Who will insure the children and how will uninsured costs be allocated?
11. Child Care Support: How much will each parent pay for daycare?
12. Security for Support: Should one or both parents secure life insurance, naming the other as beneficiary for the benefit of the children?
13. Income Tax Exemptions: Who claims the children on their income taxes?
14. Spousal Maintenance/Alimony: How much and for how long?
15. Medical Insurance: Will each party cover their own?
16. Marital Property: What is a fair and equitable way to value and divide marital property?
17. Non-Marital Property: Does the holder of a non-marital interest retain that interest?
18. Pre-Separation Debts: How is the marital debt divided?
19. Post-Separation Debts: How are debts accrued after separation divided?
20. Fees and Costs: Will one party pay, or each responsible for their own attorney fees and costs?
21. Name Change: Does either spouse wish to change their name?
22. Ongoing Conflicts: Will the parties agree to mediate or use a parenting time consultant if future problems arise?
23. Documents: Do each agree to execute all paperwork necessary to transfer property interests?
24. Non-Disclosure: Does the court retain the ability to re-open the case if it is revealed that one party has hidden assets from the other?

Naturally, there are many other issues that will need to be addressed, but the 24 items listed above will give you a general framework for discussion.

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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.

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We often find that our clients are interested in resolving their cases as promptly as possible.  With that in mind, we have designed a rather efficient system for handling uncontested divorces. Typically, an uncontested case will reach conclusion within 60 to 90 days from the date we are retained.  The following step by step timetable is offered to all of our new uncontested divorce clients as a guide for them to understand what they can expect in terms of case progress:

• Conference call with client within one week of receiving client questionnaire.
• Preliminary marital termination agreement (MTA) to client within one week of conference call.
• Client dictated edits and revisions to MTA completed within one week.
• Opposing party dictated edits and revisions to MTA completed within one week.
• Remaining pleadings drafted within one week of approval of MTA from opposing party.
• Meet with parties within one week of completion of all remaining pleadings.
• File with the district court within one day from execution of all pleadings by parties.
• Judicial assignment notice received within two weeks from filing.
• Schedule hearing, if necessary, within one day from receipt of judicial assignment notice.
• Attend hearing as scheduled by court (usually 30-60 days) or await signed order (usually 30-60 days).*
• Notice of Filing drafted and mailed within one week from receipt of final order.

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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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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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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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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.

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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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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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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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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.

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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.

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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.

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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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