The Latest Family Law ADR Trend: Moderated Settlement Conferences

mediation1Moderated settlement conferences have become a bit of a trend in Minnesota, creating an easier, and more affordable way to resolve a divorce. Many family court judges are encouraging litigants to engage in this form of alternative dispute resolution (ADR).

A moderated settlement conference usually occurs after the “pretrial” hearing, but before the couple has a formal trial. It is a last opportunity to allow the parties to make decisions regarding the remaining issues in their family court case. Even if the parties have attempted mediation or an early neutral evaluation, the relevant information in their case may not have been as well-developed at the time.

The types of cases that are usually perfect for a moderated settlement conferences are those that are relatively close to resolution. A conference may be needed, however, because some key issue remains in dispute, such as child custody or alimony.

A third party moderator is hired to manage the conference. They are typically an experienced family law attorney, or retired judge, tend to act the part of both a mediator and an evaluator. The scope of the moderator’s responsibilities is outlined by the parties, and their attorneys, based on the issues and the facts that are causing conflict.

Conferences are typically held at the courthouse, depending on the availability of the judge. If held at the courthouse, referees or judges will make themselves available to immediately approve agreements that have been reached by the parties, preventing the litigants from “undoing” things.

The Law on Annulment v. Divorce in Minnesota

annulThe two ways to end a marriage, voluntarily, are annulment and divorce. An annulment is the legal procedure that treats a marriage as if it never existed. It is legally erased. A divorce, however, is the legal dissolution of the marriage. Both parties are returned to single status.

The avenue a couple can pursue depends on the circumstances surrounding the marriage. For instance, annulments are typically granted because the marriage was never valid in the first place. In Minnesota, litigants may seek an annulment if any of the following exist:

  • Coercion – This is also known as “forced consent” and it occurs when one spouse was forced into the marriage under duress;
  • Bigamy  – One party may have already been married to someone else;
  • Mental incapacity – One spouse was under the influence of drugs or alcohol at the time of the nuptials and was not able to provide informed consent;
  • Mental illness – One spouse was emotionally or mentally ill at the time of the marriage;
  • Familial relationship – If the couple was related, then the marriage is prohibited by law;
  • Fraud – One spouse aggress to the marriage based on misrepresentations made by the other;
  • Inability to consummate – Either spouse was not physically able to have sexual relations to consummate the marriage; or
  • Underage spouse – One spouse may have been too young to legally enter into the marriage without the consent of the court, or a parent.

Annulments typically conclude soon after marriage occurs, so there are typically no spousal maintenance or child custody issues involved – as in many divorce cases. Divorce can also involve the division of marital assets and debts, which makes the case more complicated, and longer to resolve

The Rights of Unwed Fathers in Minnesota

Paternity-2You may wonder what happens if you are an unwed father to a newborn. Being a father means, naturally, taking on responsibility for your child, and making sure that you do what’s best for him or her. But what rights do you have as a father if you are not married to the mother of the child?

PATERNITY

The term “paternity” refers to the “legal” father of a child under Minnesota law. Once paternity is established, a father has the responsibility to support their child financially. He may also seek a court order concerning parenting time and custody.

Of course, every child will have a biological mother and biological father. But, a child may not have a “legal” father. Under Minnesota law, if a newborn’s mother and father are not married to each other when the child is born, the father will not be considered the “legal” father until the necessary steps are taken.

An unwed father will have no legal rights to the child until he becomes the “legal” father. Even if the father’s name is on the newborn’s birth certificate, that is insufficient to declare him as the “legal” father.

HOW DOES AN UNWED FATHER BECOME THE “LEGAL” FATHER OF THE CHILD?

A man (not married to the child’s mother) can become the “legal” father a child either through a signed “Recognition of Parentage” (ROP), or by court order.

Establishing paternity is the first step to gaining rights to access and decide issues surrounding health care, school issues, adoption, benefits, parenting time, financial support, and many other needs and issues surrounding a child.

HUSBAND’S NON-PATERNITY STATEMENT

In a case where the mother is married to a man who is not the biological father, a ROP form will not be enough to establish the biological father as the “legal” father. The husband of the mother must also sign a form known as the “Husband’s Non-Paternity Statement” within one year of the birth of the child.

Once these two forms are completed, it will finally establish a “legal” relationship between the biological father and child.

ROP DOES NOT GRANT CUSTODY OR PARENTING TIME

Once a ROP is signed, a father becomes responsible to support the child. However, under Minnesota law the mother of the child will have sole physical and legal custody. The ROP does not give any custody or parenting time to the father. In order to gain custody or parenting time, an action must be filed in family court.

What’s the Difference Between Physical and Legal Custody in Minnesota?

custody2The phrase “custody” is used to describe the obligations, and rights, of parents regarding the care of their children.

Child custody issues come about when an unmarried couple has a child together, or when married parents get a divorce.

The two types of child custody in Minnesota are physical custody and legal custody.

Legal custody involves a parent being able to make decisions regarding the child’s upbringing and well-being (religion, education and healthcare).

Physical custody is the type of custody that a parent has when the children live primarily with them. It involves the day to day care of a child.

Parents can have joint legal custody, which means both parents have a say in the upbringing of the child. If there is a dispute, the court can intervene in order to settle the conflict.

With joint physical custody, children typically (but not always) split their time with both parents.

If a parent is awarded sole physical custody, the non-custodial parent will be granted visitation (now referred to as a more politically correct “parenting time” award). A schedule will be established. For instance, a child may live with dad, but visit mom on weekends.

In some cases, sole legal custody is granted, but those awards are rare (typically reserved for situations in which there is a history of domestic abuse among the litigants). When both parents are in the picture, the court prefers that they are equally involved in making important decisions for the child.

I Was Rushed Into Signing A Prenuptial Agreement. Is It Valid?

Prenuptial-Agreement-2Did you sign a prenuptial agreement and it felt a bit rushed? Did you not have time to adequately read the terms of the agreement? Were you coerced into signing the agreement?

While “rushed” may not be the best claim to void a prenup, there are a number of legal bases to do so. For instance, being coerced into signing the agreement can void the contact. So can signing under duress. Failure to fully disclose the agreement to you can also lead to invalidity of the agreement.

A prenup in Minnesota may also be deemed invalid if any of the following are true:

  • You lacked the mental capacity to sign the prenup – If you can prove that you lacked mental capacity to understand what you were signing, it is possible to invalidate it.
  • The paperwork was never executed to begin with – As with any legal document, a prenuptial agreement can only be enforced if the paperwork was filed and does not contain careless errors. If the initial agreement was not drafted well, then it could be invalidated.
  • You lacked legal representation when you signed the agreement – It is important to have the representation of a qualified attorney to ensure the terms of the agreement are understood.
  • The provisions are ridiculous – If the provisions are lopsided ,or simply ridiculous, it may be thrown out. For example, a prenup that says “no child support is to be paid in the case of a divorce” it is most likely going to be rejected.

For the best opportunity to enforce a prenuptial agreement, both parties should have their own attorney. The prenup must be written, executed without coercion, and signed after full disclosure of both parties’ assets, debts and income.

Parenting Plans: An Option for Minnesota Custody Disputes

Once a divorce or paternity action pphas been initiated, physical and legal custody issues may arise, along with a need to determine the appropriate parenting time schedule.

Rather than fighting over custody labels, Minnesota law allows the litigants to simply enter into an agreement called a “Parenting Plan.”

The details of a Parenting Plan are finalized by the parents themselves, and are not based on an Order of the Court; Judges have no authority to unilaterally order a Parenting Plan.

The Parenting Plan will be used in place of a specific child custody order.

The Plan, however, is a legally binding document. Both parents are required to adhere to its terms. Either party may be found in contempt for a failure to do so.

There are variations in Parenting Plans depending upon the needs of the child, as well as the needs of the parents. Some are a few pages long, and others are several dozen pages in length.

You can expect a Parenting Plan to include details about the primary residence of the child, and who is responsible for the child’s medical, educational and religious needs.

We also recommend that Parenting Plans address the circumstances of not only the child - but also the parents, including household routines, schedules and the geographic distance between households.

Finally, many Parenting Plans take into account a child’s relationship with extended family, including grandparents and other family members.

Wondering whether a Parenting Plan is the ideal way to address the child-related issues in your case? We’re here to help. Call (763) 323-6555 to speak with one of our attorneys free of charge.

First Divorce Decision: Where to Venue Your Case?

coutThe venue for a divorce, generally, refers to the location where dissolution proceedings will be heard.

If you are filing for divorce in the State of Minnesota, venue refers to the county in which your divorce will be handled.

The first step in initiating divorce proceedings in the State of Minnesota involves the service and filing of a Petition for Dissolution of Marriage.

In order to file a Petition for Dissolution of Marriage, either you, or your spouse, must have been a resident of the State of Minnesota for a period of at least 180 days.

If both you and your spouse live in the same county, the venue issue will be a fairly simple one: that county will serve as venue.

On the other hand, you may live in one county, while your spouse lives in another. In such a situation, you may decide in which county you want to file for divorce. It’s a race to serve the other side and file with the court.

While the laws of custody and marital dissolution do not differ from county to county, the manner in which you are treated could.

We recommend that you speak to a Minnesota divorce lawyer before you make a decision concerning the venue for your divorce. We’re happy to help. Please call (763) 323-6555 to speak with our attorneys free of charge.

What are the Differences Between Judges, Family Law Referees and Child Support Magistrates?

gavjuIn Minnesota, family law matters are typically handled either by a family court judge, referee, or child support magistrate.  There are minor variations in the legal authority and responsibilities of each such official, and there is also some variation in the types of cases that they preside over. 

Most family court hearings in Minnesota are presided over by judges. A family court referee may get involved, but only in certain counties that allow referees to preside over proceedings – for instance Hennepin County or Ramsey County. Because of the volume of cases these counties experience, a family court referee may be hired at the discretion of the county itself. The referee is not appointed by the governor.

There is no major difference between a family court referee and a judge, and a family court referee has, more or less, the same kind of legal authority that a judge has.  Yet, when the family court referee signs an order, it must also be approved by a judge.  There is no need to appear at a separate hearing before the judge for approval of the referee’s order.

Child support magistrates, as the term suggests, are only involved in those cases where the issue revolves around child support and enforcement of child support payments. In the State of Minnesota, all counties have child support magistrates.

If you have a question about your rights in a divorce or family law case, call (763) 323-6555. Our attorneys will speak with you free of charge, and provide you with the best information possible.

I’ve Filed for Divorce in Minnesota. What’s Next? Go!

stopwatAs early as three weeks after filing for divorce, the parties must appear before the judicial officer assigned to their case. This first appearance is called the “Initial Case Management Conference.”

The ICMC is an informal hearing. No arguments are presented, or decisions made – except for a determination concerning how to move forward in the most efficient manner.

Any issues that are not resolved among the parties can be resolved through the selection of a settlement process known as early neutral evaluation. The fundamental purpose of the ICMC is to obtain a referral for ENE – or elect to litigate.

FENE

One neutral expert is assigned in the Financial Early Neutral Evaluation (“FENE“) program. They start by gathering all of the necessary financial information, and listening carefully to the position of each party (with the assistance of their lawyer). A candid assessment made regarding the strengths and weaknesses of each side’s case. Negotiation follows.

Fortunately, more than 70% of cases are resolved through FENE, with approximately $1,000 in neutral expert fees. This may seem expensive, but the end result is a fraction of the cost of traditional litigation and trial.

SENE

Social Issue Early Neutral Evaluation (SENE) is used to resolve custody and parenting issues. In this type of evaluation, there are two custody experts assigned – one male and one female, to avoid any perceived gender bias.

The evaluators meet with the parties, and their lawyers, to listen to their position. Once all of the information is presented, the evaluators break, and meet privately to discuss the matter. Then, they return to provide an evaluative opinion about the likely outcome if the matter moved forward to a more traditional custody study. Once the opinion is given, the parties discuss and negotiate. Approximately 65% of SENE referrals result in a settlement.

If you have questions about the ICMC, FENE or SENE process, we invite you to contact us. These programs are designed to facilitate an early settlement – even in the most difficult cases. Our lawyers have participated in hundreds of these evaluations, and we are prepared to assist you, as necessary. Please call (612) 789-2100 to speak with a lawyer free of charge.

Minnesota Step Parent Adoption: An Overview

patStep parent adoption is the most common forms of adoption in Minnesota. It involves a three-part process.

First, the parental rights of the biological father are terminated. Usually this is done on a voluntary basis, although in some instances and involuntary termination of parental rights will be necessary.

The court will not grant a voluntary termination of a father’s parental rights unless mother’s new husband is ready to adopt the child.

An involuntary termination of parental rights is appropriate when the biological father will not consent, but there is an adequate statutory basis to terminate. The statutes in this area have recently been amended, and some additional opportunities for an involuntary termination have been created.

Once the termination process is complete, the next phase of a step parent adoption involves drafting the adoption paperwork. The relevant pleadings include not only a petition for adoption, but also affidavits from the parties. Proposed findings for the court to sign will accompany a certificate of adoption and request to amend the birth certificate of the minor child.

This complete package of pleadings, and other information, is then filed with the court administrator.

The third phase of the step parent adoption involves court approval of the adoption itself. Unlike a traditional adoption, the county will conduct a rather minimal background check concerning the step parent. Once this process has concluded, the court administrator will notify the parties, and the judge, that the matter is ready for hearing.

The final hearing is relatively straightforward. The parties, along with the child, will appear in court, and answer some simple questions about the request for the step parent adoption. Photos and celebration usually follow.

Should you have any questions about step parent adoption, feel free to contact us. Our attorneys have represented clients in step parent adoptions throughout the entire Twin Cities area. Call 612-767-4404 to speak with one of our Minnesota step parent adoption lawyers free of charge. We will answer all of your questions and provide the guidance necessary during this most exciting time.