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There is no way to foresee exactly how a divorce will unfold. Some divorces are very complex and the parties and their attorneys can anticipate at the outset that the road will be long and difficult. Other divorces are relatively simple and can be accomplished easily and quickly. Most divorces fall somewhere in between. Below are a few common scenarios and the processes that would typically accompany them.
1. Parties agree on all terms and have no children.
If the parties agree on all of the terms of their divorce, they may proceed by Joint Petition and Stipulated Decree. This document allows them to jointly bring the divorce action and expedites the divorce process. Minnesota provides pro se parties with all of the forms online that they would need to complete in order to file for divorce without an attorney.
Many parties find it helpful to hire an attorney to draft the Joint Petition and Stipulated Decree for them. Hiring an attorney often makes the process more efficient and ensures that the terms of the divorce are likely to be approved by the Court. An attorney cannot represent both parties in a divorce, even if the parties are on amicable terms and have a full agreement. One party can retain an attorney to draft the paperwork and the other can sign a Waiver of Counsel or can hire his or her own attorney if he or she has questions or concerns.
The attorney will draft the paperwork and provide it to the client for his or her review, before the paperwork is given to the opposing party for his or her review. When the paperwork has been signed by both parties in the presence of a notary, and signed by the drafting attorney, the attorney’s office will send it to the Court for administrative review. The Court will then review, sign, and file the Decree before it sends notice to the parties that the divorce has been granted. If the Court were to have any questions or concerns about the terms of the agreement or the documents as drafted, the Court would communicate these concerns with the parties and the attorney would revise the paperwork and would resend it to the Court.
2. Parties agree on all terms and have children.
The main difference between this scenario and the above is that, if there are children involved and one or both of the parties is unrepresented, the Court will require the parties to appear for a hearing before the judge signs off on the divorce. If both parties have attorneys, then they may submit the agreement for administrative review, as well.
3. Parties do not agree on all terms and have no children.
Whereas it is a viable option to file for divorce pro se when the parties agree on all terms, it is strongly advisable to hire an attorney in the event that the parties do not agree on all terms. Rather than jointly filing the Joint Petition and Stipulated Decree as described above, the process in a contested divorce is as follows.
The party who wishes to file for divorce must effect personal service of the Summons and Petition on the opposing party. The Summons and Petition put the opposing party on notice that a divorce action has commenced and gives that party thirty days in which to file an Answer. If the allotted time period has elapsed without an Answer, the party who filed for divorce can move the Court to grant the divorce by default.
In practice, if the opposing party inserts himself or herself into the proceeding and the parties have begun negotiations, an Answer may become somewhat of a formality. If negotiations appear fruitful, the parties through their attorneys may elect to attempt some form of Alternative Dispute Resolution (ADR) even before the case is filed. If, through these means or otherwise, the parties reach an agreement on all issues at this stage, then one attorney will draft a Stipulated Decree and, if it meets with the approval of both parties and both parties and attorneys sign off on it, will be submitted to the Court for administrative review.
When the Summons and Petition has been filed with the Court, either immediately or after negotiations have broken down, most Minnesota courts will schedule an Initial Case Management Conference (ICMC). This is an initial meeting with the judge, more informal than a typical court hearing, at which the parties inform the Court of the issues involved in the case and agree upon a means of ADR suitable to the issues. The parties then proceed to follow through with the ADR order and attempt to resolve the remaining issues in that manner.
If, at the beginning of the case, one party needs money from the other in order to meet his or her basic living expenses and an agreement is not forthcoming, that party may schedule a temporary motion at which the party argues for the relief he or she seeks. The other party may oppose the motion or otherwise propose a separate temporary solution. The Court will then issue an Order regarding the requested relief.
As the case proceeds, the Court will likely schedule a series of hearings to review the issues with the parties and to ensure that the case moves towards resolution. If, at one of these hearings, the parties do reach a resolution, they may read the agreement onto the record at which point it becomes an enforceable court order. When an agreement is read on the record, the parties will thereafter submit a written agreement to the Court, which recites the same terms, generally with additional specificity.
Ultimately, if the parties remain unable to resolve one or more issues through negotiation or ADR, their remedy is to go to trial on the issue(s). Family law trials are not before a jury, but rather are heard by a judge who becomes both the finder of fact and the finder of law. In every other respect the trial is identical to any other civil law trial with witnesses, exhibits, and arguments that each side uses to make his or her case. When the Court has made its decision, the decision is final and the parties are bound by it, unless it is overturned on appeal.
4. Parties do not agree on all terms and have children.
Divorcing parties with minor children will encounter the same processes described above. However, additional processes may come into play when parties are unable to agree on the issues of custody and parenting time. Certain ADR processes, such as Social Early Neutral Evaluation (SENE) focus exclusively on custody and parenting time issues. Other processes, such as mediation, easily accommodates such issues. When parties remain at an impasse despite these processes, the Court often orders a Custody Evaluation to be performed by a neutral third party who specializes in child development and family law issues. In certain situations, the Court may appoint a Guardian ad Litem to investigate and promote the best interests of the child. In other situations, the parties themselves may agree to use a parenting consultant to perform a custody evaluation and report back to the Court. The main purposes of these processes, no matter the differences among them, is for a neutral, qualified third party to assess the outcome that he or she believes is in the best interests of the child, and to report that information to the Court, so the Court can make an informed decision on the issue(s).