When parties to a divorce or child custody action are disagreeing on issues, they may feel very strongly about their position. They may want the opportunity to have their dispute heard by the family court. And if the family court directs them to attempt to resolve the dispute in mediation, or some other form of alternative dispute resolution, they may feel like that would be a waste of time.

Their attorneys may be willing to pursue their wish for a day in court. That may require a less-than-valiant effort to settle the case with the mediator. But in such an instance, if an impasse is declared, it is not an intelligent impasse. It is an impasse by default.

An intelligent impasse is one in which each party has explored a range of possibilities beyond their strongly-held position. Or at least as wide a range as possible in the circumstances. If the issue has not been thoroughly explored in an effort to negotiate an agreement, then declaring an impasse is premature.

Similarly, if the case is pending, and the court wishes to know the status of the case, the parties may inform the court that there is no resolution, and the parties are at an impasse. It would be wrong for the case to proceed to trial, simply in the absence of a written stipulation. The courtroom should not be the place where, and the time when, the facts and circumstances of the issue are first explored in detail. Many judges will not be satisfied if alternate dispute resolution has been attempted nominally, but the parties have not made a sincere effort to reach a resolution.

So, if an attorney says, “Your Honor, we have not resolved the case, and we are ready for trial,” the question is, is it an intelligent impasse, or not?

An action for legal separation is similar to an action for marriage dissolution (a/k/a divorce), except that a legal separation does not break the bonds of matrimony. Therefore, the parties remain married.

The legal separation is often confused with people who are separated pending a divorce. When a couple is getting divorced, and during the divorce they are separated, this is not a legal separation. (There is nothing illegal about their separation, but it is not a legal separation.)

When a couple seeks a legal separation instead of a divorce, typically it is for one of three reasons: (1) Residency; (2) Spiritual Concerns; (3) Substantive Issues.

(1) Residency. There is no residency requirement for a legal separation. In Minnesota, there is a 180-day residency requirement for a marriage dissolution. So, if someone has not resided in Minnesota for 180 days, but would like some form of relief, they may pursue a legal separation. (Note: in such instances, it may be more sound to simply seek the marriage dissolution as soon as the residency requirement is met.)

(2) Spiritual Concerns. If one or both spouses is concerned that dissolving the marriage is a spiritually unacceptable option (due to one’s personal emphasis on the sanctity of marriage), they may seek a legal separation to balance the interests of separating from their spouse and not breaching the marital vows. Since only one spouse would need to declare that the marriage is irretrievably broken in order for the family court to grant a divorce, a legal separation in this circumstance would require that either both spouses stand by the principle of not pursuing a divorce, or at least that one spouse respects the principles adhered to by the other spouse.

(3) Substantive Issues. In decades past, there were certain pension programs that simply would not pay benefits to a former spouse. (Examples: police pensions, firefighters pensions.) Therefore, the couple would have to stay married because otherwise the spouse of the pension participant would be deprived of their marital interest in the pension. That issue has not presented itself in the last 15 to 25 years. But more recently, a parallel issue has arisen with health insurance. In recent years, it is more common that a former spouse is not entitled to health insurance benefits than it was five or ten years ago. That said, a couple concerned about this issue should be sure to explore the options available in the event of divorce, and to compare and contrast what policies or programs might offer versus continuation coverage through their existing provider.

One reason NOT to pursue a legal separation is as a means to provide their spouse with a wake-up call, and make them change their ways, and/or to bring about a reconciliation. When reconciliation is successful, it is almost always with the help of a therapist or counselor, and through lots of effort and commitment on the part of both spouses. Using a legal separation essentially as an ultimatum is both procedurally and substantively improper. It is procedurally inappropriate because the family court process should be used for marriage dissolutions and proper legal separations, not for veiled efforts to reconcile. It is substantively improper because the terms of a legal separation are permanent and final; therefore, the relief should not be sought from the court if it is not meant to be permanent and final.

Many people seek to annul their marriage because they realize shortly after getting married that they feel the marriage is a mistake. However, that is not the basis for nullifying the marriage. The grounds for annulment, in Minn. Stat. Section 518.02, are (a) mental incapacity or infirmity on the part of one spouse unknown to the other spouse; (b) incapacity at the time or solemnization due to alcohol or drugs; (c) consent by force or fraud coupled with no subsequent voluntary cohabitation; (d) lack of physical capacity to consummate the marriage unknown to the other spouse; and (e) being underage. (Minn. Stat. Section 517.02 sets forth the minimum age for marriage to be 18, or 16 with the consent of parents or guardians.)

The fact is, a marriage dissolution in the case of a very short marriage is no more complicated than an annulment. So in most (if not all) instances in which someone wishes to pursue an annulment, but does not qualify under the statute, one can pursue a marriage dissolution, and most such divorces happen expeditiously.

It is not unusual in divorce and family law cases for issues to arise that pertain to harassment. Not harassment as in physical or sexual assault, or residential picketing (although these do constitute harassment by statute). It is the form of harassment defined as “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.” Minn. Stat. Section 609.748, subd. 1(a)(1).

What is an unwanted act in one person’s view is completely innocuous in another person’s view – especially when the two persons involved do not get along. Therefore, it is necessary to clearly identify that something (such as showing up unannounced at one’s residence, or sending hostile emails) is unwanted. It is a matter of setting the record straight, for example, on whether a rash of emails is hostile or harmless.

Essentially, it is a 3-strike rule. Strike 1: Offender engages in conduct that Recipient considers hostile, but Offender considers (or claims to be) harmless. Recipient is fed up, and so informs Offender in writing. Recipient is well served to make it clear in the written correspondence that Recipient (a) finds the act to be hostile, not harmless; (b) therefore, future similar conduct is unwanted; and (c) legal action will be taken if Offender persists. Strike 2: Offender persists with hostile conduct. Under these circumstances, the act squarely fits the statutory definition of harassment, because Recipient has clearly called out the fact that the conduct is unwanted. Offender cannot reasonably claim that the conduct is innocuous when Recipient has identified the “unwantedness” in writing. If Recipient is successful in obtaining a Harassment Restraining Order from the court restraining Offender from the unwanted conduct, that leads to… Strike 3: Offender further persists with hostile conduct, and is subject to arrest and prosecution.

Minnesota’s artificial insemination statute is in need of gender neutralization. Minnesota Statute Section 257.56 provides that “if…a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the biological father of a child thereby conceived.”

In the current age of marriage equality, this should read, “if…a woman is inseminated artificially with semen donated by a man not her spouse, the woman’s spouse is treated in law as if the spouse were the parent of the child thereby conceived.”

In the absence of gender-neutral language, if the spouse of the woman who is artificially inseminated is also a woman, she is required to adopt the child. As related in a Pioneer Press article authored by Dave Orrick, this creates unnecessary legal burdens that do not serve any useful purposes.

Here’s hoping that the Minnesota legislature remedies this problem so that other couples are not confronted with the same useless barriers.

https://www.twincities.com/2019/01/29/marriage-equality-lesbian-married-parents-actually-arent-treated-the-same-legally-as-straight-couples-will-it-change/?utm_content=fb-PioneerPress&utm_medium=social&utm_campaign=socialflow&utm_source=facebook.com&fbclid=IwAR2pIdhcRCuJ7NZZDVEI1w9i1T1nN9GFm2Kt1E0q1cxk-qTG1rMDNiurvVI

When a marriage dissolution case is first filed with the court, most metro area Minnesota courts schedule the case for an Initial Case Management Conference (ICMC).  This is a non-contested, non-litigious step in the process that gives the parties an opportunity to meet with a family court judge or referee – in most cases, the judge or referee who will preside over the case from start to finish.

The parties and the court determine at the ICMC how the parties will proceed with the case, including efforts to settle the contested issues of the case outside of court.  The ICMC model was developed in recent years to overcome poor patterns of case management and even poorer patterns of parties’ conduct in court.  The ICMC model encourages the parties to be cooperative, and less combative, when dealing with child custody and co-parenting issues, and financial issues.

When the ICMC model was devised, it was contemplated that the ICMC would take place within two or three weeks of filing the case.  One reason for that time frame is the potential for the parties to have contested issues that need to be addressed by the court.  Until the court holds an ICMC, the parties are typically unable to obtain any relief from the court except by agreement of the parties, unless the moving party can show urgent need for relief in an emergency.

Some courts are able to meet that timing standard, and others fall short but are able to proceed with the ICMC within one month.  Unfortunately, in some instances, the courts are unable to come close to the intended time frame for the ICMC.

For example, last month, I learned from a colleague that their case was blocked to one of the metro area judges who proceeds with an ICMC only upon request.  That is to say, this judge will allow parties to proceed with contested hearings right away, unless the parties jointly request the scheduling of an ICMC.  In mid-May, the parties requested an ICMC, and the first available date for the ICMC was… August.

This is very telling.  A judge’s calendar so clogged with contested hearings that the judge cannot accommodate an ICMC for more than two months.  Many of the contested hearings clogging the court’s calendar might be avoided by bringing the parties before the court for an ICMC.

I do not mean to ignore the constant challenge the family courts face trying to handle the heavy, steady flow of cases.  But the failure to provide for timely ICMC’s only perpetuates the court’s overflowing dockets.  Conversely, when courts are attentive to providing for timely ICMC’s, the courts are maximizing the chances that new cases will proceed, for the most part, outside of the courtroom.

In sum, if the family courts are overwhelmed by their case load, they need to consider what an effective remedy timely Initial Case Management Conferences are.

When someone (or some couple) is getting divorced, and has no disputes, the case often is suited for being drafted up by a paralegal service.  Divorce paralegal services tend to be low-cost, but are able to complete the divorce paperwork in a professional manner, so it appears to be a good combination.

The problem is, you get what you pay for.  Many divorce attorneys (me included) have seen people come in, weeks or months after the divorce is done, with issues that are not properly addressed in their divorce decree.  If there are no contested disputes at the time of the divorce, that does not mean that a divorce decree can be entered without addressing potential disputes.  For example, if one spouse stays in the home, but delays buying out the other spouse until the house sells or the spouse in the home refinances the mortgage, what happens if there are no good offers to buy and the spouse in the home cannot obtain financing for a new loan?

It is possible that the time and expense of correcting the problem later may be no greater than the time and expense involved in preventing the problem in the first place.  But oftentimes, the parties disagree on how to correct the problem, and then both parties incur the cost of hiring attorneys and/or paying for mediation or other dispute resolution processes.

If couples who do not have present disputes want to strike the best balance between cost and benefit, each party is well-served to consult with an attorney, even if they do not retain an attorney to represent them in the divorce.  That way, the attorney can draft the stipulated decree, or review a decree drafted on behalf of the other party, and advise the client about how to best address the issues, prevent avoidable disputes, and give some thought to potential future scenarios.

The process of consulting with an attorney is more costly than a paralegal service, but less costly – both in time, expense and hassle – than dealing with procedural problems after the divorce is finalized.