Marriage Dissolution / Divorce Process
Katz, Manka, Teplinsky, Graves & Sobol, Ltd.Divorce with Dignity ◦ Defending Rights for Family Law Clients for 40 YearsNo Fault Divorce In Minnesota, Marriage Dissolution proceedings, or divorces, are viewed as "no fault" proceedings. This means that a spouse does not have to prove the other spouse was at fault or did something wrong to cause the breakdown of the marriage to obtain a divorce. Either spouse may commence a divorce action by simply alleging that there has been "an irretrievable breakdown in the marriage relationship" - in other words, that in their opinion, the marriage is dead and there is no chance of reconciliation. If one spouse feels this way, even if the other disagrees, the court will ultimately grant the dissolution of marriage. Early in the process, if you do not believe that there has been an irretrievable breakdown of the marriage, we will gladly discuss with the option of “marriage counseling." Unfortunately, if a spouse has set his/her mind to divorcing the other, it is unlikely that counseling can repair the damage. Commencement of the Divorce Action Once a decision to start a divorce action is made, one party will serve two documents, one titled "summons" the other titled "petition." The person starting the action is referred to as the petitioner; the other party will thereafter be referred to as the respondent. Occasionally, however, in very amicable divorces the parties may agree to act as "co-petitioners." A petition most typically is served by having a person other than the petitioner hand a copy of the petition to the respondent. It occasionally can also be served by mail subject to certain requirements. Many times, arrangements can be made ahead of time so that your spouse is aware of the time and location he or she will be served with a summons and petition, although unfortunately sometimes service comes as a complete surprise. Petitioner versus Respondent A question is often asked as to whether there is an advantage to being a petitioner versus a respondent. We see no real difference, except that the petitioner can obviously effect when the action is started, and sometimes, in what county. If you and your spouse separate, and your spouse moves to a different county before the action is commenced, the petitioning spouse can commence the action either in the county you reside in or the new county he/she has moved to. There are some perceived and actual differences as to how matters proceed, depending on which county the suite is "venued" (commenced) in. A second implication of being a petitioner versus a respondent is that ultimately, if the matter does proceed to trial, the petitioner is required to present his/her case first. This may have some minor implications relative to the cost of preparing for trial, especially it the matter settles before the respondent presents her/his case. Summons and Petition The summons is a simple legal notice that a divorce action has been commenced by the petitioner and advising how long the respondent has to serve an "answer" to the petition. It also contains a preliminary restraining order, preventing changes in insurance coverage and the disposition of property, except for the necessities of life or in the ordinary course of business. In Minnesota, unless the petitioner agrees to an extension the answer must be served within thirty days. If you ignore the service of a summons and petition for a longer period of time, the petitioner may serve a motion with the court requesting that default judgment be entered. This judgment will immediately dissolve the marriage terminating certain rights you have as a married person, such as health insurance. It may also result in the moving party being awarded rights and interests in property, as well as the loss by the respondent to certain rights, such as spousal maintenance (alimony) without the respondent having the opportunity to respond and defend his/her rights. While there are cases in which the court will subsequently set aside a default judgment, it is very important that you retain a lawyer to respond to a summons and petition within thirty days. Sometimes that response may be as simple as an agreement from the petitioner's attorney to extend the thirty day period to answer the petition. The petition itself typically follows a simple format, which is not designed to argue your case in detail, but rather only provide "notice" to the other side of the very basic facts ultimately necessary for the court to decide the case. The petition will list the two parties names, addresses and ages. It will identify the names and ages of the parties' children, if any, together with a general allegation of what “custody” or "parenting time” arrangement the petitioner believes to be in the best interest of the children. In Minnesota, over the years the family law bar has come up with innumerable labels and terms for "child custody”/”parenting time". The petition will identify to the best of the petitioner's knowledge the parties "real property" (land and building) ownership, including the homestead, and any vacation or investment real property the parties have. It will identify to the best of the petitioner's knowledge the parties' other assets and liabilities. At the end of the petition is a section referred to as a prayer for relief where the petitioner will indicate in general his/her desire that the marriage be dissolved, as well as his/her desires as to custody/parenting time, child support, spousal maintenance, property and debt division, and allocation of attorney fees. In Minnesota, the court may order one party to pay part of the other's attorney fees, based on consideration of two factors, the first being need and the second being whether one party's conduct has unnecessarily increased the attorney fees of the other party. Immediate issues - temporary hearings After the service of the petition, depending on the county the action is commenced in, the proceedings will go forward in one of several ways. Most counties require shortly after the commencement of the proceedings that the parties participate in certain divorce education courses, and also require the parties to take a course to learn about the “mediation” process, and/or other types of “alternative dispute resolution” aimed at avoiding or minimizing the litigation (court) process. In all counties but Hennepin County, the court will allow the immediate scheduling of a temporary hearing, in which one party may request certain temporary relief, such as who will have temporary possession of the homestead during the proceeding, who will pay the mortgage, taxes, insurance and utilities on the homestead, what type of temporary custody/parenting arrangement is in the children's best interest, what amount of temporary “child support” is appropriate, what amount of temporary “spousal maintenance,” if any, is appropriate, who should pay other debt on a temporary basis, and whether there should be an award of temporary attorney fees. These requests are based upon written “motions” which is a written request for relief, with the “testimony” reflecting your position being summarized in a sworn, written affidavit. Sometimes you will also submit affidavits from other people in support of your position. The attorneys will then argue your position before a judge, who thereafter will issue a written order deciding the temporary issues. Follow this link for specific information about divorce and dissolution procedures in Hennepin County. Alternative Dispute Resolution You will be required in almost all counties to attempt early in the process some form of alternative dispute resolution. This will typically take the form of "mediation," which is a process in which a neutral third party, typically an attorney trained in mediation, will attempt to assist the parties in reaching their own compromise settlement of some or all issues between the parties. The mediator does not make decisions, but rather facilitates a discussion between the parties (sometimes alone and sometimes with the assistance of counsel) aimed at reaching settlement of your issues. The mediation process is confidential, and if you are not successful in reaching a mediated settlement, the judicial officer will never learn what positions either party took in mediation. As part of the mediation process, the mediator will request that both parties provide an accurate summary of income, assets and liabilities. It is recognized that sometimes one party controls some or all of this information, and skilled mediators attempt to assure that there is a full and fair disclosure of financial information, and a full and fair discussion of the issues. Discovery If you are not successful in mediating a settlement, or if there are questions in your mind as to whether all income and assets have been fully disclosed, identified or valued, the attorneys will then conduct what is known as discovery. This is a process in which the lawyers may utilize numerous techniques for obtaining the financial information necessary to fairly identify and value all income and assets. The lawyers may serve "Interrogatories" and "Requests for Production of Documents” which are formal questions and requests for financial information and documents, such as tax returns, bank statements, financial statements and other information, which must be answered and sworn to under oath within thirty days. The attorneys may also notice the depositions of the parties themselves or other people who may have relevant information, such as bankers and business associates. At a deposition the witness is sworn under oath, and the attorneys ask questions of the witnesses, which testimony is preserved in writing by a court reporter. The attorneys may also employ experts, such as "vocational evaluators," in the event it is alleged that a spouse who has not been working or who has only been working part time, is able to earn income to contribute to their support. They may also employ accountants or other business valuation experts to appraise family-owned or closely-held businesses. They may also employ other experts to appraise other assets such as real property and personal property (furnishings, jewelry and artwork, etc.) Custody/Parenting Time If you and your spouse have been unable to resolve issues involving your children, it may be necessary to have a formal custody/parenting-time evaluation. This evaluation can be conducted by the Court Services workers in the County your action is venued in, if the County has such a department. In some counties, this work is contracted out to third parties. Some parties, however, prefer to retain their own neutral expert, typically a child psychologist with expertise in conducting such evaluations. Private evaluations typically are more expensive than those conducted by Court Services. Whoever conducts the evaluation, however, will interview you, your children, and such third parties who have relevant information as are necessary, including other family members, friends, neighbors, teachers, doctors and counselors. They will observe you interacting with your children, and they also administer psychological testing. At the end of this process, some evaluators will first make an oral presentation of their findings in the hope that their summary will facilitate settlement. If not, a formal written report is issued. Settlement discussions and pretrial After discovery is completed, the attorneys will typically work with you to formulate a settlement proposal which is presented to the other side, either as part of a settlement meeting at one of the attorney's offices, or simply through a letter sent to the other lawyer. The attorneys will prepare a balance sheet summarizing your assets and liabilities. In Minnesota, the law requires an "Equitable Division of Property." While this does not as a rule require an equal division of property and many factors are considered, typically, especially following a long-term marriage, and equitable division will require mathematically a fairly equal division of property. Settlement discussions will also involve proposals as to custody/parenting time, child support and spousal maintenance. Parenting time proposals may also suggest the future use of a "Visitation Expeditor" or "Parenting Consultant" who is a neutral third party retained to assist in resolving future parenting and parenting time disputes. Settlement discussions will also involve "child support," which is currently set pursuant to "child support guidelines." New guidelines, effective for all cases filed after January 1, 2007, are based on a comparison of the gross incomes of both parties, and the amount of time the children will spend with each party. Settlement discussions will also involve "spousal maintenance." Pursuant to Minnesota law, spousal maintenance while based on a consideration of several factors, including length of the marriage, the amount of time one spouse has been out of the job market, and that spouse’s ability to independently earn income, ultimately will be based upon a consideration of the marital standard of living, the needs of the spouse requesting maintenance and the ability of that spouse to meet those needs, as compared to the needs of the spouse from whom maintenance is sought, and their ability to meet their own needs and still contribute to the support of the requesting spouse. Maintenance may be temporary or permanent, depending on the facts of the case, including length of marriage, and whether there is any uncertainty as to if the spouse requesting maintenance will ever be able to become fully self-supporting. It is also possible, as part of settlement agreements, to contractually limit the amount and duration of spousal maintenance and limit or prevent altogether any future modification of maintenance, through what is known as a "Karon waiver." Benefits of such waivers involve certainty to both parties as to amount and duration of maintenance. Risks also are possible if a party contracts to a set term and amount of maintenance, and either through illness or job loss, either cannot meet his/her obligation or may need an extension of his/her award, as most waivers require the court to give up jurisdiction to make such a change. Importantly, Karon waivers may only be agreed upon by both parties. If there is no such agreement, a court may never order such limitations and waivers of rights to future "modification" of the amount or duration of maintenance. Ultimately, if the parties cannot resolve some or all issues involving parenting, property valuation or division, or income allocation through child support and maintenance, the court will schedule one last "pre-trial" to attempt to facilitate a settlement. If unsuccessful, the matter will be set for trial. Trial While upwards of 95% of all cases settle short of trial, the most expensive and acrimonious manner of resolving your differences with your spouse is through a formal trial - and perhaps nowhere is the retention of skilled counsel more important. Trial involves extensive study of all facts and evidence relevant to your case, extensive preparation of witnesses for testimony, extensive preparation to conduct examination (questioning) of witnesses, extensive preparation of exhibits summarizing your position as to the evidence, hopefully, in a form understandable and convincing to the trial judge, strategy as to what witnesses will be called and in what order, as well as the actual trial examination of witnesses, which often, especially when "cross examining" opposing witnesses, requires the lawyer to think on his/her feet, and prepare questions on the spot as they hear evasive or unexpected answers. The success of Katz, Manka, Teplinsky, Graves & Sobol, Ltd, Ltd, has had in over fifty years of divorce practice and is based in large part on the business sophistication and experience of our attorneys, and the exhaustive discovery and preparation we put into learning literally all facts of your case, no matter how minute. That experience carries forward after trial, to the detailed written summations of the evidence and the law submitted to the trial judge either immediately prior to or after trial, depending on the preferences of the judicial officer assigned to your case. Post trial and appeal Following trial and final written submissions, the judicial officer is allowed up to ninety days to issue written "Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree" which is the legal document dissolving your marriage and deciding all issues involving your children, property division, child support, spousal maintenance and attorney fees. After the issuance of the Judgment and Decree, Minnesota Law has a set procedure and time limit to allow either party to ask the court to correct any perceived or actual errors; to argue to the court to change its' decision; or, to argue that based on alleged errors, a new trial should take place. Although a new trial is rarely granted, it is not uncommon, especially when presented with complex issues, for the Court to slightly amend its decision following the original judgment and decree. Thereafter, if either party is still dissatisfied with the result, he/she may "appeal" the lower court ruling to the Minnesota Court of Appeals. Such appeals are of right, and take place before a three-judge panel, after extensive briefing and oral argument to the Court of Appeals. This process may take upwards of a year after the trial court's final decision. The Court of Appeals may affirm all decisions outright, reverse all decisions outright, or may affirm some parts of the decree while reversing others. If a party thereafter is dissatisfied with a ruling of the Court of Appeals, he/she may seek discretionary review by the Minnesota Supreme Court. The Supreme Court, however, denies review of most cases and only chooses to hear a few family law cases each year. Those cases selected for review typically involve novel factual or legal issues. Discuss options, obligations, and opportunities of marital dissolution in Minnesota. Contact Katz, Manka, Teplinsky, Graves & Sobol, Ltd to talk with an experienced Twin Cities divorce attorney. |
