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.

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?

The Four Phases Of A Contested Divorce In Minnesota

About half the cases we handle are more contested divorces. These are marital dissolution cases in which the litigants don’t expect to reach agreement early and, instead, need the intervention of the court system in order to reach a resolution.

These divorces typically involve four distinct segments.

The first segment of work in a contested case involves the case workup. This is where we put together the initial pleadings in the case and serve and file them. You will complete an initial questionnaire and provide documentation to us so that we can adequately move forward and understand exactly what relief is sought.

Following the service of the summons and petition, we will participate in what’s called an initial case management conference. This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. The court, at that point, might refer the matter for an early neutral evaluation. This is a process where the parties can meet with a court-appointed expert and try to settle the case before becoming too entrenched.

If matters don’t resolve at the early neutral stage, then we move into the next phase – called discovery. This is a process where we’re going to gather information from your spouse. We may do so formally, or informally.

In addition, we may elect to schedule a motion for temporary relief. This is a hearing in which the court will make a determination, on a temporary basis, of who is going to reside in the homestead, who is going to have temporary custody of the children, and what sort of temporary alimony, or child support awards, are appropriate. Quite often cases will settle following the entry of a temporary order, because the parties have a preview into how the judge views the facts of the case.

However, if the case has to continue, we will position your case for the settlement stage. We’re going to attempt to work out matters either through mediation, or some other form of alternative dispute resolution.

If we’re not able to work it out, the court will call us back in, and we will participate in a pre-trial conference, where we’re going to try one last time to get the case settled, with the assistance of the judge.

The fourth phase involves preparation for and actually trying the case. The judge has 90 days to issue a written decision following the end of the trial, and if either party is dissatisfied with the outcome, they have an additional 60 days in which to file an appeal.

Anoka County Taking A Shot At Early Neutral Evaluations In Divorce Cases

Following Hennepin County’s lead, and a statewide trend, the Anoka County District Court has implemented a pilot early neutral evaluation program for divorcing couples. The evaluations focus on the two key issues involved in a dissolution: custody of children and economics.

Couples can divert from the court system and meet with qualified “neutrals” who will facilitate settlement discussions and (unlike traditional mediation) offer opinions about the merits of a party’s position. If successful, the process can save litigants months of emotionally-charged litigation and tens of thousands of dollars in legal fees and costs.

Five Anoka County judges have agreed to participate in the program, including Judge Sharon Hall who says that the early neutral process will allow litigants to “keep some control over their situation.” The family law section of the Anoka County Bar Association has been a driving force behind the program, which provides litigants with yet another alternative to traditional litigation.

One big difference between the program in Anoka and Hennepin County involves funding. While Hennepin County covers the bulk of the costs for litigants, the Anoka County program has a very limited budget. Work is done by local lawyers, not county employees, on a sliding fee scale.