When you start the dissolution process, your attorney and your soon to be ex-spouse’s attorney will require various documentation regarding your income, spending and assets. Specifically, you will be required to gather documentation supporting the values of all of the assets in your estate. Additionally, you will need to provide evidence of all income, including but not limited to tax returns for the most recent years and recent paystubs. Further, you will be required to gather bank and credit card statements to support your spending history. Don’t worry if you don’t have the requested information or documentation because your spouse has it, your attorney can obtain the documentation from opposing party or opposing counsel during the discovery process.
How should I communicate with my soon to be ex-spouse?
If you have children together, communicating with your soon to be ex-spouse can be difficult, but is necessary. Try to keep your communication short, civil and to the point and avoid including disparaging comments. Communication in writing is best. You should attempt to limit emails to once per day and ensure responses are turned around within 24 hours.
What is the process of a divorce – start to finish?
1. Retain an attorney
2. Service of the Summons and Petition
3. Initial Case Management Conference (ICMC) with the Court if you are in the metro area
5. Alternative Dispute Resolution (this can be mediation, a Financial Early Neutral Evaluation (FENE), or a Social Early Neutral Evaluation (SENE)
If at any point during the steps identified above, either you or your spouse have disputes on temporary issues related to custody, parenting time, or financial support, either you or your spouse may seek temporary relief by bringing a temporary motion. Also, at any point during the process you and your spouse can reach a settlement, and your attorney will draft a Stipulated Judgment and Decree. Once the Judgment and Decree is submitted to the Court and entered, you will become officially divorced.
How long does it take for a divorce to be final?
Typically, dissolution takes approximately one year from start to finish. However, this can vary up or down, depending on the complexity of the case and sometimes on the level of conflict between the parties.
How much will it cost?
Attorneys fees vary greatly from case to case. Many variables come into play such as whether you and your spouse agree on custody and parenting time; whether the issues of child support and spousal maintenance are contested; and whether property division is an issue. If there is not an agreement on custody and parenting time, additional experts, such as a custody evaluator, can become involved.
When spousal maintenance is an issue in the dissolution, it is very common for each party to hire a financial expert to assist with cash flow projections. Financial experts are also necessary when determining the value of business ownership, should either party have an interest in a business.
It is important that you understand your payment arrangement with your attorney up front. Our firm charges an hourly fee for our services, and you will be charged each time that our office works on your file. All clients sign a retainer agreement when they hire us, which carefully delineates our firm’s billing practices.
What are some things that I can do to avoid excessive attorney’s fees?
A key to avoiding excessive fees is to respond promptly, fully and accurately to your attorney’s request for information and/or documentation from you, or to let your attorney know that you are unable to obtain the requested information. The goal in family law is to get an accurate picture of each party’s circumstances so that a fair resolution of all issues can be achieved. The more you can help with that process, the more you can lower your attorney fees.
You will want to work with your attorney in considering a cost/benefit analysis on certain issues. For example, it can be expensive to search for hidden assets or to pursue items of personal property with unproven value. In those types of instances, consider what you are pursuing and whether the cost is worth the likely result.
Will I have to go to Court? What are some alternative options? What forms of Alternative Dispute Resolution are there?
If the parties are able to agree on all issues, they may submit the Summons and Petition, along with their final proposed Decree, to the Court for review and filing, and never appear in court at all.
If the parties are not in agreement on all issues, which is more common, once the case filed with the Court an informal, off-the-record court appearance called the Initial Case Management Conference (the “ICMC”) will be scheduled. This hearing gives the judicial officer a chance to meet informally with the parties and counsel, ascertain what agreements have been arrived at and what issues are still not resolved, and schedule a path forward. After the ICMC, the parties will have an opportunity to exchange information and engage in Alternate Dispute Resolution.
Depending on the complexity of the case, the parties can elect to participate in Early Neutral Evaluation (“ENE”) for either or both financial and child-related issues. The parties and counsel meet with a court-appointed ENE facilitator shortly after the ICMC. Each party is afforded an opportunity to present his or her desired resolution of the issues, and the facilitator will work through the issues to try and find common ground.
If common ground cannot be reached, the facilitator will make a recommendation based on what the facilitator believes the most likely result would be if a judge were deciding. The parties are free to accept or reject this recommendation. Importantly, the ENE process is confidential. This means that in the event the parties do not resolve all issues through the ENE process, the facilitator will simply report to the Court that agreement was not reached. No details of the substance of the ENE process, including the parties’ respective positions, are reported to the Court or may be used later in the litigation process.
The ENE process has the advantage of a potential resolution of issues prior to incurring the fees associated with extensive discovery and expert reports. It is most useful where the parties are familiar with the extent of the marital estate or where the custody and parenting time issues are amenable to compromise and settlement. The ENE process has the disadvantage of the possibility of a premature settlement when all of the facts and circumstances are not known, and may not be appropriate where the issues are complex.
If the parties elect not to go through the ENE process, after adequate information has been exchanged, the parties may participate in formal mediation, which can be evaluative (as in the ENE process), or not evaluative, where the mediator works with the parties and counsel to resolve issues, but does not make an independent recommendation.
A third form of Alternative Dispute Resolution is the Moderated Settlement Conference. This is a court-ordered process which usually takes place after extensive discovery and previous settlement efforts have occurred, and may be a last attempt to settle prior to trial. In this process, the parties and counsel work with a mediator and the Court. The Court can be available to provide informal opinions on legal questions, and those opinions may give insight to the parties on the likelihood of prevailing on various issues at trial. In the event the parties are able to reach agreements in this process, the mediator, counsel and parties will appear before the Court to read their agreement into the record. Once read into the record, the agreements will be binding upon the parties and will be incorporated into each party’s final Decree of Dissolution.
Essentially, there are many types of ADR. The types we see most commonly in family law cases are:
- Mediation: Mediation is a forum in which a neutral third party (typically another attorney, retired judge or referee, or psychologist) facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues. Clients and their attorney should come to mediation prepared to explain their settlement position. Through mediation, some parties are able to resolve many, if not all issues. Typically, mediation sessions last for 3- 4 hours. It often takes more than one mediation session to reach a full and complete settlement.
- Early Neutral Evaluations (ENE): an ENE is a forum in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties. The neutral then gives an assessment of the strengths and weaknesses of the case. If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing discovery. ENEs can focus around custody and parenting time (Social Early Neutral Evaluation) or focus on the parties’ finances or marital estate (Financial Early Neutral Evaluation).
- Non-Binding Advisory Opinion: This is a forum in which the parties and their counsel present their position before a neutral. The neutral then issues a non-binding advisory opinion to the parties.
If parties cannot resolve all the issues presenting themselves in their dissolution through the ADR process, the case will go to Court for resolution.
See Rule 114 of the Minnesota Rules of Practice – District Courts for further details.
What happens if we don’t agree on custody and parenting time?
One option is to request the Court to appoint a neutral custody evaluator. This neutral expert – often a child psychologist – will evaluate and make a recommendation on custody and parenting time in light of the “best interest factors” set forth in Minnesota Statute Section 518.17.
The custody evaluation process involves interviews with both parents and, depending on the age of the children, interviews with the children and/or home visits with the children at each party’s residence to observe the interaction. The evaluator may also reach out to therapists, teachers, physicians, and personal references provided by the parties. The process will usually take approximately three to four months to complete.
Once the evaluation process is complete, most evaluators will provide an oral report and written recommendations to counsel. If the parties agree with the evaluator’s recommendations, counsel will draft an Order embodying the recommendations and submit to the Court. However, it is important to realize that neither party is required to agree with the recommendations, and in that event, either party may request the evaluator to provide a complete, written report of his or her findings and recommendations, and the matter can be referred to Alternative Dispute Resolution and, if that fails, ultimately to trial.
How is child support determined? What does child support cover?
Minnesota Statute Chapter 518A governs the calculation of child support. The statute sets forth “guideline” amounts of support based on the gross income of the parties, the number of minor children and the percentage of parenting time for each parent.
Guideline child support is a streamlined calculation using the parties’ gross incomes without reference to deductions or living expenses. Although there are nuances in the case where a party may be self-employed, unemployed or underemployed, the calculation itself is straightforward and is most often determined through review of the parties’ W-2s, tax returns, pay stubs, 1099s, or other evidence of income. In certain cases, where it is difficult to determine income, the Court may “impute” income to a parent based on his or her earning capacity rather than actual income.
As noted above, the calculation also depends in part on the percentage of parenting time each parent is awarded. The three categories consist of less than 10% parenting time; between 10% and 45% parenting time; and between 45.1% and 50% parenting time. Within the statutory guidelines, an adjustment for parenting time will decrease the support obligation if the parties share equal parenting time, and increase the support obligation if a party has less than 10% parenting time.
The online child support calculator can be found at http://childsupportcalculator.dhs.state.mn.us/
For more information, see Minnesota Statute §518A.34.
How is spousal maintenance determined?
Spousal maintenance (sometimes known as “alimony”) is governed by Minnesota Statute 518.552, which sets forth the threshold for an award of spousal maintenance, and once the threshold is met, a number of factors the Court will take into consideration. To meet the statutory threshold, you must demonstrate that you lack sufficient property to provide for your reasonable needs or that you are unable to provide adequate self-support at the marital standard of living.
Spousal maintenance is one of the most hotly contested issues in family law because there are no set guidelines regarding how to determine the amount and duration of the spousal maintenance award. A brief summary of the factors that are considered are:
- The financial resources of the party seeking maintenance and the parties’ ability to meet needs independently;
- The time necessary to acquire education or training to enable the party seeking maintenance to find appropriate employment and become fully or partially self-supporting;
- The standard of living established during the marriage;
- The duration of the marriage and in the case of a homemaker, the length of absence from employment;
- The loss of earnings, seniority, retirement benefits, etc. foregone by the spouse seeking maintenance;
- The age, physical and emotional condition of the spouse seeking maintenance;
- The ability of the spousal from whom spousal maintenance is sought to meet needs while meeting those of the spouse seeking maintenance;
- The contribution of each party in the acquisition, perseveration, etc. of the marital estate.
A key consideration is the “marital standard of living,” meaning what your average monthly expenses were during the marriage. Compiling a marital standard of living budget is often one of the most difficult, but most important, components of a spousal maintenance case. Your legal team will assist you in this process as needed.
Unlike child support, calculation of spousal maintenance takes into account net income rather than gross income. Additionally, spousal maintenance is taxable to the recipient and deductible to the payor, so it is critically important to factor in the projected tax effect when determining the level of spousal maintenance needed to meet the recipient’s monthly living expenses
For more information, see Minn. Stat. §518.552
What should we tell the kids?
Plan what you are going to say to your children before you inform them of the pending separation or divorce. While not always possible, try to tell your children together. Keep it simple. Let them ask questions. Ensure them that it is not their fault and that you love them. They may be confused or sad. Let them grieve. Not every child needs to see a therapist, but if you are seeing signs of distress, seek out professional help
Also, no matter how angry you may be, it is important to remember that you must not talk poorly of the other parent.
What if my ex-spouse isn’t paying spousal maintenance or child support?
If there is an existing court order requiring your ex-spouse to pay you, that order has the full force of law. But, unfortunately, Court orders aren’t self-enforcing. Contempt of Court is a remedy that is available to enforce the payment of spousal maintenance and child support. If you are receiving your spousal maintenance and child support through your local county office of Support & Collections, you can ask for assistance in enforcing the orders through that office, which is represented by the County Attorney of the county where you reside. County attorneys tend to be very busy and they may take a while to get to your case. Also, they do not generally have the resources to aggressively go after an ex-spouse’s financial situation to determine if there is an ability to pay the ongoing support by looking at bank records, credit card statements, and so forth.
Private attorneys can also bring motions for contempt of court, and we have a great deal of experience in doing so. Generally speaking, if the payor of spousal maintenance and/or child support is working and earning the same or greater income as at the time the order was entered, there are multiple means of enforcement that are very effective. Someone who doesn’t pay court ordered support can lose his/her driver’s license, can have professional licenses suspended, can have his/her wages garnished, and can even go to jail for non-payment. Because there are such extreme sanctions for non-payment, we find that these cases can often be settled out of court, with agreements for repayment of arrearages along with the resumption of on-going payments.
Can I sell assets to pay for a lawyer?
The general answer is yes, because the payment of necessary fees to be represented in your divorce is an exemption to the overall restraining orders that go into effect once a divorce is pending. But you should never sell any assets until you consult with your lawyer. It is important that any asset sales be handled appropriately and with full disclosure so that there are no repercussions later.
What if I have a prenuptial agreement? Can that be challenged by either party?
Our office has a great deal of experience dealing with prenuptial agreements in divorces. If prenuptial agreements meet certain procedural requirements, there is a public policy that they are enforceable. However, the law also allows prenuptial agreements to be challenged for various reasons. This area of law is very complex, and enforceability can be affected by various factors. It is extremely important that both parties in a case with a prenuptial agreement have representation by a lawyer with experience in this issue. In most cases in our office where prenuptial agreements are challenged, we have met with great success in settling those cases through mediation.
Can I modify my decree after it’s been entered?
Decrees are always modifiable as to custody and parenting time, child support, and spousal maintenance based on changes in circumstances. Property settlements are not modifiable unless there has been a mistake, a misrepresentation or fraud by one party against the other. Modification motions are complicated, and there are different standards for modifying custody than for changing parenting time, for example. It is important to talk to an attorney if you wish to modify your decree to determine if you meet any of the criteria to do so. Our office has extensive experience in modification motions of all types.
We agree on everything. Do we still need a lawyer?
If you have children, real estate, an agreement on spousal maintenance, or own retirement accounts, you should have a lawyer draw up the agreement so that it is enforceable and so you can be sure that you achieve the outcome you agreed on. If there are no children, no maintenance, and no assets, the self-help office in most counties could help you draft the basic papers that would get you divorced. However, because divorce decrees are hard to modify, we would always advise parties to run the agreement by an attorney to be sure you haven’t missed anything, and to determine if your agreement is fair to you. Our firm would do this with you in a meeting where you would pay for just the time you spend with us, without a retainer, or with a limited retainer agreement should additional follow-up meetings or work be warranted.