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

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’s Social Early Neutral Evaluation Model for Divorce and Paternity Cases

best iMore than 95% of the cases we handle settle short of trial. When custody issues are involved, many of our clients participate in a process known as social early neutral evaluation – an SENE.

In a social early neutral evaluation, the lawyers and clients will meet with a pair of evaluators. These individuals are usually social workers, custody evaluators, or experienced family law practitioners. The team will consist of one male and one female, to avoid the perception of gender bias.

Most social early neutral evaluation sessions are approximately three hours long.

During the first hour, the parties themselves do most of the talking. The evaluators want to hear from each side. Issues such as physical custody, legal custody and parenting time are discussed. The role of the lawyers during this part of the process is typically rather limited, as the evaluators want to absorb information directly from the litigants.

During the second hour, the evaluators do the hard work. Once the evaluators have heard from the parties, and asked all of the questions that need answering, they will break and discuss the matter privately. This part of the ENE typically takes about 30 minutes. During this time, the parties are usually separated.

Next the parties, the lawyers, and the evaluators come back together, and the opinions of the evaluators are expressed. The opinions of evaluators are nonbinding, but provide some insight into what two qualified individuals believe the likely outcome will be if the matter proceeds to trial. The opinions of the evaluators will not become known to the judge.

Once evaluators have provided their thoughts, the third hour of the session occurs. During this third hour, the parties separate, and negotiation begins. Some, or all, of the relevant issues may be discussed, such holiday schedules, routine access schedules, summer vacation time and non-school days.

About 75% of the time, a settlement will be reached. If the settlement is reached, the terms of the settlement are put into a memo, which is then forwarded to the judge. Assuming the court approves of the agreement, the agreement will be incorporated into the final divorce decree.

Because of the success of this type of forum, many counties have now adopted the social early neutral evaluation model. Some (like Anoka County) call it a custody parenting time early neutral evaluation, or CPENE, where Hennepin County uses the SENE label.

Our lawyers have participated in hundreds of early neutral evaluations. If you have questions about the process, we invite you to give us a call at (612) 767-4404.

Contempt in Minnesota: Consequences of Ignoring Court Orders

The court is responsible for controlling the conduct that occurs within its doors, but also has to deal with issues outside of the courtroom when it comes to family matters.

It is typical for a contempt motion to be made in a family law case when one party has violated an order of the court, such as an order to pay child support, spousal maintenance, or a parenting time arrangement.

The contempt rules are rather strict, in an effort to motivate individuals to comply with court orders. A particular action (or inaction) may constitute contempt if the following criteria are met:

  • The court must have jurisdiction over the case in order to file a motion; and
  • It must be properly alleged by the non-offending party that offending party has violated the directive of the judge.

When a contempt motion is filed against a litigant, that person must show up to a hearing and prove that they did comply with the court order, or have an adequate explanation as to why they violated it. An “Order to Show Cause” mandates such an appearance.

If the individual is found in contempt of court, a conditional penalty may be handed down by the judge. Sanctions can include fines, fees, transfer of property, jail time, or any penalty that the court deems appropriate.

Our Minneapolis divorce lawyers routinely represent clients in contempt cases – either pursuing contempt, or defending against a contempt claim. We invite you to contact us at (612) 767-4404 to discuss your situation free of charge.

Gambling, Alcohol Abuse, Drug Use, Cheating & Dissipating: Fault In A No-Fault Divorce State

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.

Family 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 decorumin 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. We would also suggest leaving all digital devices in the car. We recall a lawyer whose cell phone rang in the middle of his intense cross examination of our client in a recent trial. The more memorable impression was the expression on the judge’s face.

What Is An FENE…And Why Do They Work?

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, we 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?