There are four main issues that may be involved in a divorce: custody and parenting time, child support, asset and debt division and spousal maintenance. Each, however, has its own nuances that can open up complex disputes as part of a marital dissolution action – such as the tracing of non-marital claims, the tax consequences associated with an alimony award, or whether a need for supervised parenting time exists.
In terms of the process, a contested divorce in Minnesota can involve any number of distinct segments, many of which may be avoided if a settlement agreement is reached along the way.
The first segment of work in a divorce involves the case workup. Our clients complete an initial questionnaire, and provide documentation to us, so that we can adequately move forward and understand exactly what is sought.
Following our initial information gathering, we put together the initial pleadings in the case, and serve them upon the opposing litigant. Once service of process is complete, we file the matter with the district court.
Initial Case Management Conference
Following the service of the Summons and Petition, we will participate in an Initial Case Management Conference (ICMC). This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. It provides the Court with an opportunity to size things up.
Early Neutral Evaluation
The Court, at that point, will refer the matter for an Early Neutral Evaluation (ENE), so long as the parties agree. ENE is a process in which the parties meet with a court-appointed expert and try to settle the case relatively early. The expert is given the authority to offer evaluative opinions about the likely outcome in the event that the matter was tried to a judge.
During contested divorce in Minnesota, if matters are unresolved following an Early Neutral Evaluation, the parties conduct “discovery.” Discovery involves the gathering of information from the opposing litigant. At this stage of things, discovery is usually done in a formal way, through written Interrogatories, Requests for Production of Documents, Requests for Admission, or, in limited circumstances, a Deposition.
Motion For Temporary Relief
In addition to Discovery, it sometimes makes sense to pursue a Motion for Temporary Relief. Temporary Motions involve a hearing that takes place in which the Court makes a determination, on a temporary basis, for example, of who is going to temporarily reside in the marital residence, who is going to have temporary custody of the children, and what sort of temporary alimony or child support awards are appropriate.
Temporary Motions cannot be scheduled until after the parties have completed the Early Neutral Evaluation process. If a Temporary Motion is necessary at the onset of a case, the litigants can opt out of ENE.
Quite often cases will settle following the entry of a Temporary Order, because the parties have a sneak peek into how the Court views the facts of the case.
Alternative Dispute Resolution
If matters do not settle following a Motion for Temporary Relief, the litigants will continue to try to work things out through various forms of alternative dispute resolution, including mediation, arbitration or a moderated settlement conference. Our contested divorce attorneys in Minnesota aim to avoid the need for a trial, which can be rather expensive.
If all settlement efforts have been exhausted without agreement, the Court will schedule a Pre-Trial Conference. At that Conference, the judge will assist the parties in trying, one final time, to resolve their differences. If no settlement is reached, trial is scheduled.
The length of a trial is directly tied to the number of issues in controversy, along with the complexity of those issues. A trial on just the financial issues typically takes no more than one day. A trial involving custody and parenting time issues, however, may take a week, or more.
The judge has 90 days to issue a written decision following the end of the trial.
If either party is dissatisfied with the outcome of their contested divorce, under Minnesota law, they have an additional 60 days in which to file an appeal. The appellate process can take a year, or more, to reach conclusion. A three-judge panel will review the record and take written and oral argument from the litigants to determine whether the district court should be affirmed (upheld), reversed (overturned) or whether the matter should be remanded (returned) to the district court judge for further hearings or findings.
Podcast: Contested Divorce in Minnesota
This is Jason Brown, one of the founding partners with the Brown Law Offices, a Northwest Twin Cities Divorce and Family Law Firm. Well, today’s topic is going to address the four key phases involved in a contested divorce. I kind of generally break divorce cases into one of two types, those that are contested where we have to have a judge involved making decisions and guiding the parties and their future, and cases that are uncontested. Those are cases where parties come to us and say, “Look, we think we agree on most if not all of the issues, we’d like you to please put together a comprehensive set of pleadings, get those in front of a judge, have the court sign off on them. And let us move on with life.” About half the cases we handle are more uncontested. The other half are contested, and so let’s talk and devote some time to the four phases involved in a contested case.
Preliminary Case Workup
The first phase of a contested case involves the preliminary case workup. The second involves the discovery phase. Third involves a settlement phase. Then the fourth phase of the case involves taking the matter to trial. It’s important to keep in mind that not every case that we handle in a contested type manner is going to reach all of these stages. In other words, not every case we handle on a contested basis will reach the trial stage. It’s very likely, in fact, that even as close to trial as during the trial itself, a case will settle. It wasn’t too recently that we had a case where we showed up, we were ready to go, and we spent two days negotiating and settling a case as opposed to actually trying it. But let’s talk first about the initial phase, the preliminary case workup phase.
All right. During the first stage, what we’re going to be doing is asking a lot of our clients, asking them to provide us with key information that’s necessary for us to effectively represent their interests. We’re going to do things like, gather income information and verification, bank statements, credit card statements, property documents, titles to vehicles, titles to boats, other assets, and verification of any debts that might be out there, as well. In addition to gathering the raw data, we’re also going to have our clients complete an initial client questionnaire. Most people that see this questionnaire, the jaw kind of drops a bit and they wonder exactly how many days it’s going to take for them to complete it. But in all honesty, it’s about a 15 to 16 page questionnaire that you can download from our website. It’s actually pretty straightforward stuff. We need basic information like who they are, their address, their telephone number, and the same information about their spouse, information about children, information about, again, employment, insurance information, and property details.
Once we have all the information in place, then we can put together the initial pleadings. The initial pleadings in a divorce case are known as a summons and a petition to dissolve the marriage. We put these documents together, have our clients sign off on them, and then figured out the best way to have a spouse served with those initial papers. We can either serve personally, where we pay someone to go out and actually serve your spouse, or we can do it by mail and have your spouse sign off on a document called an admission of service. Once your spouse has been served, we’re going to file those documents with the district court. The court will place the matter on their docket and then we will be free then to schedule matters or hearings in front of the judge. Typically, the initial case workup takes about 30 days from beginning until end when we’re actually in that first initial case management conference before the judge.
The second phase of a contested divorce is one that we kind of refer to as the discovery stage where we’re asking a lot of information from the other side. Discovery is a process that allows us to gather the information that we need from your spouse in order to fully understand the nature and the scope of the marital estate, the income of the parties, and the wishes of the other side concerning the custody and parenting time arrangements if your case involves custody issues. The way we do that is really threefold. First, we can ask your spouse to sign some sort of a sworn statement of assets and liabilities. If we think that they’re not going to hide anything from us, we will do that as a way to avoid the extensive expense that can go into the other two options that we have, which include taking a deposition of your spouse or serving your spouse with formal interrogatories and document requests.
Now while discovery is pending, we may decide it’s in your interest to move the court on a temporary basis to award temporary custody or temporary possession of the marital homestead, a temporary award of child support, or a temporary award of spousal maintenance. That would involve actually scheduling a hearing date and putting together a set of written pleadings, going in, having a court hearing where the lawyers will each argue their respective client’s position, and then asking the court to make that determination on a temporary basis. In addition to the discovery going on between the parties in the possibility of a temporary motion during this phase, we may also involve some experts. For example, we may need to have an appraiser come in and value some real estate or a business interest. We may also decide to hire a private custody evaluator to come in and engage in the lengthy process of determining what sort of a parenting time arrangement and custodial arrangement serves the best interest of the children.
Position for Settlement
Once we have all the information we need from our client, from the other side, and from the experts involved in the case, we’re going to try to then position the case for settlement. We might try mediation. We might try sitting down with the other attorney and their client, or we might try participating in what’s called an early neutral evaluation. If we get the case settled, then what we’ll do is put that together in the form of a written stipulation. We’ll send it into the judge. The judge will sign off on it, and the case is over. On the other hand, if we can’t reach a settlement, then what we will do is attend what is known as a pretrial conference. At the pretrial, we will again negotiate, but this time we will do so with the assistance of the court. The judge will stand by and be ready to help the parties if there is a wedge on some particular issue. If we can’t settle at the pretrial, then what we’ll do is put the matter on for trial and get a trial date from the court. The court will issue its pretrial order.
If all else fails and we’re forced to take a case to trial, we are certainly prepared and well-qualified to do so. Keep in mind that the trials are typically reserved for cases where the parties have either a fundamental difference of opinion about the underlying facts or they simply cannot agree on how to resolve the controversial issues that face them. Most often, these issues involved things like custody and alimony and I say that because they are emotionally charged, and under the statutes, they are more or less factor-based as opposed to formula-based. The general rule is that property is divided 50/50. The general rule is that the support guidelines will dictate how much child support is going to be paid between the parties, but when it comes to alimony and custody, the court has to balance all sorts of factors, meaning that it’s more difficult to project exactly what would happen if the case went to trial.
It’s important to keep in mind, too, that in Minnesota divorces or tried to the court, not to a jury, and as a result the trials can be a lot less complex. They can be done in a little bit quicker timetable depending upon the issues that are involved in the case. The length of trial really depends upon the nature of the dispute. Typically, what we find is that financial-based cases, cases involving alimony or property division, can be tried in about a day’s time, whereas cases involving custody issues tend to take two to three days, up to a week, or sometimes even longer. Important to note that trials are very expensive.
A single day in court can cost each of the parties a couple thousand dollars and the general rule that we follow is that for a day of trial, there’s at least two days of prep. So if you think of a three day trial, you’re probably looking at spending somewhere between 15 and $20,000 to have your matter heard. We don’t say that to scare you, but we say it to scare you. We want you to think as you’re working with us about what the real costs are involved in taking a case to trial. In other words, don’t spend the 18 if there’s only $10,000 in dispute.
Decision from the Court
Once the trial is concluded, the court has to issue its written findings. Typically, that will be done within 90 days of the final submissions that the lawyers offer to the court. If you’re dissatisfied with the decision of the trial court, you do have the right to file an appeal with the Minnesota court of appeals.
And there you have it, a 10 minute overview of a process that can take up to two years to work its way through. My hope for you is that you will take advantage of any and all opportunities to get a case settled as it works its way through the court process.
Judges time and again will tell litigants that, yes, it’s their job to make decisions, but they don’t like to. They would much rather give that power and control to the parties, to the dissolution. The judge will know very little information about you, even after a couple of days of testimony. The court will have a very small narrow snapshot of who you are and what your life is about. And so for that reason, try to do your best to try to work some issues out short of taking matters to trial. Our philosophy is to try to handle matters in the least expensive way possible, making sure your rights are protected. In most cases, that means we’re going to get a case settled relatively early. In those cases, however, where it’s necessary, we’re fully prepared to take your case to trial, and we do a great job trying cases.
If you have other questions for me, I do invite you to give us a call or send me an email. The contact information is on our website.