What To Expect

Selecting an attorney for any legal proceeding is a very important and personal matter, but particularly so in a divorce or family law case. The outcome of a family law case is critical to your life and future. Taking the time and making the effort to select the right attorney at the outset can save you time, money and stress down the line.

There are many ways to select an attorney, but word-of-mouth is one of the best, most reliable ways to find a good attorney. Ask friends, family members, co-workers, and other acquaintances if they know of or have used a good family law attorney. You can also contact the local bar association and ask for the names of attorneys practicing family law in your area. You may wish to ask an attorney in another area of the law for a referral to a good family lawyer, since he/she may have a more objective, professional view point.

Because working on a divorce or family law case is such a personal matter, finding the attorney who is the right “fit” with you and your needs is key. We recommend that you take the time to meet with several attorneys before selecting the one that is right for you.

Following are some key considerations when determining which lawyer you will work with on your divorce or family law case:

Experience – Attorneys specialize in different areas of the law. Make sure that your attorney practices exclusively and has experience in the area of law you need – whether it’s divorce, child custody, adoption, or domestic abuse law.

Reputation – Your attorney should be a member in good standing of the local bar association. In addition, ask around about your attorney’s reputation in the community. Is he/she known for being ethical, honest, hardworking, and competent?

Integrity – You should only work with a lawyer who is honest and ethical. It may be tempting to find an attorney who is willing to “fight dirty” on your behalf, but if an attorney is willing to be unethical in some situations, why should you be confident that he/she is dealing honestly with you?

One way to find out about your attorney’s professional integrity is to check his/her Martindale-Hubbell rating. Martindale-Hubbell ratings are peer ratings of an attorney’s legal ability and professional ethics, and are a widely used and respected rating system within the legal community.

Communication – Put simply, you should be able to understand your attorney. A good attorney should be able to clearly communicate details of your case and what actions are being taken and why. If you cannot understand your attorney, you will feel even more frustrated and overwhelmed by your case and the legal process.

Availability – Will you be able to reach your attorney and set up meetings within a reasonable time frame? Remember, attorneys are busy people, so it is inevitable that you will spend some time dealing with paralegals and administrative assistants. However, there should always be someone available to answer your questions and you should always be able to set up appointments with your attorney to discuss details of your case.

Personal Style – Everyone has unique personality traits, communication styles, and preferences. You will like some attorneys and not others. One attorney may sound great “on paper” but may not “click” with you in person. You will spend a lot of time and confide details of your personal life to your attorney. Trusting and feeling comfortable with your attorney will make the legal process go more smoothly. That’s why it is important to meet with several attorneys before selecting the one that is right for you.

Fees – It is important to ask your attorney in advance how your legal fees are determined. You should know your attorney’s hourly rate and what activities you will be charged for so there are no surprises when you get the bill. Remember, a cheaper hourly rate doesn’t mean the cheapest attorney or the best deal. It is important to look at a combination of factors, including experience, communication, integrity, and fees when deciding on an attorney.

Once you have selected the attorney that meets your needs, it is important to be prepared for your first meeting and to be familiar with what to expect in the divorce process.

Selecting an attorney for a divorce or family law case is a very important and personal matter. Please review the information on our website to learn more about our firm and contact us to find out how we can help you with your family law needs.

It is important to be prepared for your first meeting with your attorney. The first meeting is an opportunity for you and your attorney to get to know one another, review the facts of the case, and determine if you will be a good “fit” for one another.

To prepare for your first meeting:

Make a List of Questions – Bring a list of questions for the attorney. Remember, you are “interviewing” him/her as much as you are being “interviewed” about your case. Consider asking questions about:

• The attorney’s divorce law experience
• How he/she charges for services and for what
• How you will be expected to pay for services
• What his/her philosophy is on divorce and litigation
• What his/her initial thoughts are on your case
• Whether anyone else in the office will be working on your case and if you can meet those individuals
• How the attorney interacts with clients

Create a Case “Fact Sheet” – Preparing a document that highlights the important facts of your case and sending it to the attorney for review ahead of time will help ensure your first meeting is as productive as possible. A list of possible information to include:

• A relationship “timetable” – when you married and the events that led up to the decision to divorce
• When you or your spouse served divorce papers (if applicable)
• Information on your children
• Information on former marriages and divorces (if applicable)
• Key issues of the divorce – your custody concerns, complex property issues, business ownership issues, etc.
• “Skeleton issues” such as physical or sexual abuse, criminal records, drug or alcohol abuse, etc.

Gather Important Documents – Many attorneys provide potential clients with a “client intake form” to be completed before meeting for the first time. The amount of information and documents needed is often overwhelming. The best thing to do is to do everything a little bit at a time. Documents you will be asked to gather include:

• A copy of your marriage and birth certificates
• Social security and driver’s license numbers
• Copies of your tax returns from the last three years
• Copies of your last three pay stubs
• A certified copy of the divorce decree from any previous marriages
• A copy of any marital contracts like a prenuptial agreement
• Dates and information on any separations, reconciliation attempts, or marriage counseling
• Education and employment information
• Information on your children
• Household income information
• Banking information, including saving and checking account information
• Investment information
• Pension information
• Real estate holding information
• Information on any valuable household items, such as jewelry, antiques, artwork, etc.
• Information on all debts

There are several important steps that must be taken in order to get a divorce – or what in legal terminology is referred to as “a dissolution of marriage.” The first step in obtaining a divorce in Minnesota is to inform your spouse of your intention to seek a divorce, either formally or informally. To formally notify your spouse of your intentions, you must serve your spouse with a Summons and Petition for a Marriage Dissolution.

Petitioning for a Divorce and Serving a Summons

Petitioning for a divorce and serving a summons are the first formal steps in the divorce process. A petition is a document prepared by the spouse who is petitioning for the divorce (Petitioner) that gives basic facts about the petitioner and his or her family and specifies what the petitioner is seeking from the other spouse (Respondent) through the divorce, such as child support, custody of the children, spousal maintenance, etc.

A summons is served along with the petition and is the formal notice of the beginning of the divorce process. Sometimes a summons will include a 30-day deadline for the other spouse to respond to the petition. The summons will also contain a restraining order that retrains the parties from selling or encumbering assets, or spending down assets other than in the ordinary course of supporting themselves. The restraining order also restrains the parties from terminating or changing the beneficiary on any insurance coverage in effect. In formal circumstances, both the petition and the summons are delivered to your spouse by a process server, while in informal proceedings these can be mailed along with an Admission of Service document. If you have decided upon a divorce or have been served a summons, it is important that you consult with your attorney right away to ensure that you are fairly represented throughout the divorce process.

Filing for Divorce

After a petition and a summons have been served, the next step in the divorce process is for the couple to formally file for divorce. To do so, you must file the summons and petition with the Court Administrator in your county and state of residence. In Minnesota you or your spouse must have resided in Minnesota for at least six months before filing for divorce. You may decide to delay filing for divorce as you attempt to work out the issues of your divorce outside of court, but you must eventually file with the court in order for the court to approve your final divorce papers.

Resolving the Divorce Issues

After filing for divorce, you and your spouse must reach an agreement about issues such as the division of marital property, child custody,visitation, and support (if applicable), and spousal maintenance, among other issues. Working with an attorney who will serve as your advocate throughout this process is vital in obtaining a just and equitable settlement.

The first step to reaching an agreement is going through a process called discovery where you and your spouse gather all of the necessary information to negotiate the issues. The discovery process can be done formally or informally. The informal method involves gathering information with your spouse or through the attorney via letters and phone calls, while the formal process involves asking and answering, under oath, written requests from the other party for information. The parties may also engage experts, either jointly or individually, who help determine divorce issues such as property division and child custody.

After the necessary information has been gathered, you and your spouse, along with your lawyers, will attempt to reach an agreement by determining how best to split your marital assets and arrange custody. The process of reaching an agreement can take a very short amount of time, but can also be quite lengthy depending on the complexity of the case and how willing each party is to compromise.

After negotiating the issues with your spouse and his or her attorney, the divorce will either go to trial or end in an agreement. While it is preferable to reach an agreement with your spouse out of court, it is important that your attorney is not afraid of litigation or you may feel pressured into accepting an agreement that is not equitable or desirable.

Trial

If you and your spouse cannot reach an agreement, your case will proceed to a full trial, involving the presentation of witnesses, evidence and testimony. Upon hearing the evidence, a judge will determine the details of your case and issue the final divorce decree.

Temporary Agreements

Temporary agreements are often put in place during the sometimes lengthy process of reaching an agreement while you and your spouse work toward a final agreement. Temporary agreements may be formally drafted into stipulations or court orders, and provide you and your family a sense of normalcy and stability during the divorce process.

Permanent Agreement – the Divorce

A permanent agreement allows you to finally and formally attain your divorce, and is formally referred to as a Marital Termination Agreement. The Marital Termination Agreement describes everything relating to the divorce in detail, including property division, custody, visitation stipulations, and the details of child support and spousal maintenance, etc. The Marital Termination Agreement must be signed by both parties and is not final until the Court approves it with a divorce decree. If the two parties cannot reach an agreement, then the case will go to trial where a judge determines the issues presented at trial, and issues a judgment and decree.

After the Divorce

Sometimes, agreements made during the divorce must be revisited at a later date due to changes in circumstances (such as income levels, relocation of one spouse, untenable visitation agreements, etc.). In these instances, it may be necessary to seek a modification or enforcement of the original agreement.

In addition, if there were legal errors or erroneous omissions of evidence in the original case, you or your spouse may decide to file an appeal. An appeal is not a re-trial of the original case, but is rather a re-examination of the original case to determine if an error was made in the original judgment. However, most divorce cases end after the final divorce decree and allow both parties to move on with their lives – hopefully with a just and equitable divorce behind them.

Deciding the merits of an appeal is best done with the advice and expertise of an appellate attorney. However, clients have the ultimate “say” in determining whether or not they will appeal a case. Therefore, it is important that you become educated about the appeals process and make an informed decision.

So what is an appeal?

An appeal is basically the process of asking a higher court to reverse the decision of a trial court after a final judgment or ruling. An appeal is not a retrial of a case, but is merely a re-examination of the original evidence presented to the trial court.

Typically, reversals occur when (1) the court made a serious error of law and/or (2) the trial verdict was against the weight of the evidence. Small errors that are unlikely to have substantially impacted the court’s judgment are not an adequate basis for the reversal of a lower court’s judgment.

Factors to consider when deciding on an appeal

When deciding whether or not to appeal a case, there are many factors to consider:

• Merits of the appeal – The first thing to consider is the merit of your appeal. Is your case winnable? In deciding the merits of your case, you may wish to consult an attorney who was not involved in the original case for a more impartial viewpoint. Incorrect rulings, erroneous admissions of evidence, incorrect interpretations of the law, or insufficient evidence in support of the court’s decision are all potential grounds for an appeal.
• Monetary cost – The appeals process can be a time-consuming, drawn-out, expensive process. Hiring an experienced and knowledgeable attorney who is familiar with the laws affecting Minnesota divorce and family law appellate matters is vital in winning complex appeals cases, yet attorney expertise does not come cheaply. Certainly there are many instances when the case outcome and life-changing effects are well worth the monetary investment, but you should engage in an honest cost/benefit analysis before making the decision to move forward.
• Personal cost – Not only are appeals expensive, but they are time-consuming and often emotionally draining. Successful appeals require determination, perseverance and patience.
• Outcome – Despite the monetary and personal costs of pursuing an appeal, the potential outcome often outweighs the sacrifice. If you feel that you simply can’t live with the court’s decision and believe your case has merit, an appeal may be right for you.

A careful cost-benefit analysis may help you decide whether or not an appeal is right for you. Contact us to learn more about how we can help you with your specific appeal case needs.

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
4. Discovery
5. Alternative Dispute Resolution (this can be mediation, a Financial Early Neutral Evaluation (FENE), or a Social Early Neutral Evaluation (SENE)
6. Pretrial
7. Trial

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.

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.