For the most part, parties involved in a divorce, custody, or parenting time dispute are required to attempt Alternative Dispute Resolution (ADR) prior to bringing their issue(s) to court.   Because Rule 114 of the Minnesota General Rules of Practice allows parties to “create an ADR process” by agreement, in theory the possibilities are literally endless.  In practice, however, most parties in Minnesota use one of two main, well-established processes: mediation and early neutral evaluation.

Mediation is the process by which both parties sit down with a neutral third party and attempt to reach resolution through negotiation.  It is considered a “facilitative” process because, as Rule 114 points out, mediation is  “[a] forum in which a neutral third party facilitates communication between parties to promote settlement.”  While, by rule, “[a] mediator may not impose his or her own judgment on the issues for that of the parties,” different mediators have different styles.  Some mediators are strongly facilitative and work only to improve communication between the parties without imposing judgment on the parties’ positions.  Other mediators are strongly evaluative and provide an opinion on the parties’ positions in an effort to move the parties closer to resolution. Many mediators fall somewhere in between.

Social Early Neutral Evaluation (SENE) is a process by which the parties sit down with two evaluators, one male and one female, for a structured conversation regarding custody and/or parenting time issues.  The evaluators generally begin by having a conversation with the petitioner (the person who started the case) and then the respondent.  Both parties are present in the room when the evaluators hear from each party, and are encouraged to listen, but not to interrupt or interject. The evaluators ask questions, gather information, and ensure that each party has had an equal chance to be heard.  After the allotted period of time, the evaluators leave to discuss the issues and return with a recommendation, which they present to the parties.

Financial Early Neutral Evaluation (FENE) deals with financial issues such as property division or spousal maintenance.  Often there is only one evaluator in this process and the discussion may be less structured than it is in a SENE.  Overall, however, the process is the same.  The parties take turns speaking with the evaluator about the issues.  The evaluator gathers the information he or she needs to make an informed recommendation regarding what he or she believes a court may do in a similar situation.  The recommendation is then used to focus the parties’ negotiations.

While mediation and ENE are the most common types of ADR processes in Minnesota family law cases, there are a few other commonly used processes worth mentioning.

Arbitration allows each party to present his or her case to the neutral arbitrator who acts as a private judge.  Unless the parties agree that the arbitration will be non-binding, the arbitrator’s decision will be binding upon the parties, although it can be appealed.

Mediation – Arbitration (Med-Arb) is a hybrid process by which the parties attempt to mediate the dispute, but if they are unable to resolve the issues through the facilitative process, the neutral will switch roles from mediator to arbitrator and will provide an evaluative decision on the issues.

Moderated Settlement Conferences most commonly occur in the middle or towards the end of the divorce process.  One neutral facilitates negotiations between the parties.  The negotiation takes place at the courthouse at a time when the judge is available to take the bench and allow the parties to read an agreement into the record or, in some cases, to offer the parties feedback during their negotiations.

There are many reasons one or both parties may choose to end an marriage.  Not surprisingly, most of the time one or both of the parties points to the other’s behavior as the main reason the marriage cannot continue.  Affairs, drug and alcohol dependency, addictive behaviors, intra-family violence, poor money management skills … the list is long and all of the items on it are legitimate causes or effects of a deteriorating relationship.

There is a disconnect, then, between the fact that these are very significant issues to parties going through a divorce, yet they have no legal significance when it comes to granting the divorce and dividing the parties’ property.  Minnesota is one of the vast majority of states that does not consider “fault” at all when undertaking the business of separating households pursuant to a divorce.  Certainly there are cases in which this provides an unfair outcome for a faultless party who nonetheless is required to bear an equal burden for his or her spouse’s wrongdoings.  Yet, it is clearly the better option overall for the court system to set aside the issue of fault, to create a policy by which parties who are married to one another share equally in gains and losses until the time of the divorce and to ensure that an already arduous divorce process doesn’t further bog down the overburdened court system.

While “no fault” makes sense from a property perspective, there is one area of divorce and family law where “fault” is an important part of Minnesota’s jurisprudence.  Custody and parenting time issues require the court to make a decision that is in the “best interests” of the child.  To do this, the court must consider the ability of each parent to provide a safe and caring environment for the child.  If one parent has a serious drug addiction problem, for example, that parent will likely not be well-suited for substantial custody and parenting time rights.  On the other hand, simply because one parent had an affair doesn’t necessarily mean that he or she is in any way an unfit parent.  In the limited setting of custody and parenting time, “fault” only plays a role if it affects a party’s ability to parent.

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).

Common-law marriage is a marriage in which there is no license issued by a governmental agency, there is no marriage certificate filed with the government, and there is no solemnization of the marriage in the presence of witnesses.  The title of this post is ironic, because Minnesota does not recognize common-law marriage.  The Minnesota legislature abolished common-law marriage in 1941.  However, Minnesota does recognize common-law marriages that were legal contracted outside of Minnesota.

Several states still recognize common-law marriage, but most states have either abolished or never recognized common-law marriage.  Generally, what defines a common-law marriage are (a) the intent to be husband and wife; (b) cohabitation; and (c) public recognition or declaration of being husband and wife.

The practical significance of Minnesota not recognizing common-law marriages is the fact that many unmarried couples live together, pool their resources, share expenses, and jointly incur debts.  This deprives the individuals who cohabit outside of marriage of certain rights, and shields them from certain obligations.  Couples who cohabit long-term, without entering into a legal marriage, should make informed and deliberate decisions about raising children together, co-owning real estate, jointly signing off on debts or mortgages, or accepting and/or refraining from employment.

If you want to terminate your marriage, you need a divorce.  If you want to nullify the marriage, you need an annulment.

Under Minnesota law, a marriage can be annulled under the following circumstances:

(a) One spouse lacked the mental capacity to consent to the marriage at the time of the wedding, unbeknown to the other spouse;

(b) One spouse lacks the physical capacity to engage in sex, unbeknown (at the time of the wedding) to the other spouse;

(c) One spouse, or both spouses, lacked the capacity to consent to the marriage at the time of the wedding because of the influence of alcohol, drugs, or other incapacitating substances;

(d) One spouse’s consent was obtained by force or fraud (although this basis for annulment does not apply if the defrauded spouse later lives with the other spouse voluntarily);

(e) One spouse, or both spouses, were not 16 years of age or older at the time of the wedding, and if under the age of 18, did not have consent of his or her parent or guardian.

It is important to note that the family court has discretion to fairly divide assets and liabilities in annulment cases, as in divorce cases; so the decision to annul the marriage – versus to dissolve the marriage – does not affect the property settlement.

Moreover, in certain cases, one spouse may dispute the grounds for annulment but be unable to dispute the grounds for divorce, since a marriage can be dissolved under Minnesota law if one spouse declares an irretrievable breakdown of the marriage (a somewhat subjective standard that is satisfied by one spouse’s assertion to the family court that the marriage cannot be saved).  If the grounds for annulment can be effectively disputed by one spouse’s counterargument, the spouse desiring to end the marriage may be best served by seeking to dissolve the marriage, rather than nullify the marriage.

Collaborative law is the practice of proceeding with a marriage dissolution without going to court (other than submitting a written stipulation settling all issues in the divorce).  The parties contract with each other and their attorneys to refrain from using the court process to litigate or contest disputes.  If the parties and their attorneys sign a participation agreement, it is understood that if either or both parties seek relief in court (other than processing the final, stipulated divorce decree), the collaborative attorneys will withdraw, and the parties will retain different counsel for the court proceedings.

The case proceeds based upon the negotiation of the parties, mediation or early neutral evaluation if a third party facilitator is needed, and an arbitrator or consensual special magistrate if there is a contested dispute in need of a binding decision.

When Collaborative Law first emerged in the 1990’s, alternate dispute resolution (ADR) (such as mediation and early neutral evaluation) was not yet as commonplace as ADR is now.  During the last two decades, there has also been an increase in the availability of consensual special magistrates and arbitrators to provide for addressing contested disputes outside of court.

One drawback to the collaborative process is that the process breaks down without a certain level of cooperation from both parties.  The parties and attorneys must reach agreement, where possible; identify the contested issues; and determine the forum and time frame for resolving the contested issues.  If one party wants to delay the proceedings, it is possible to manipulate the process to prevent forward progress.  In non-collaborative cases, an upcoming court date often provides incentive to move forward and deterrence from stalling. It is not clear what an effective incentive/deterrence is in collaborative cases.  Therefore, it is important that both parties in a collaborative case have equal (or at least, comparable) motivation to get the case done.

When you are involved in a family court matter, particularly a contested dispute in family court, reality and truth will serve you well.  Fictional reality and engineered truth will not serve you well.  The family court’s goal is to make findings based in reality and truth; consequently, the party seeking to engineer the truth, or establish a fictional reality, is likely to lose the battle.

The family court can best learn the facts about a case by hearing the observations and recommendations of a neutral professional.  The family court can best be misled about the reality of a case by basing its findings strictly on the mud slung by the parties at each other in affidavits filed with the court.  When one parent wants to bring down the other parent, by filing affidavits of family members and neighbors, or bringing family members and neighbors into court to testify on the record, they are probably trying to establish a fictional reality – a reality that would not bear out if a neutral professional were to render their own observations.  If what family members and neighbors have to say really is the truth, then those facts can and should be borne out by the work of a neutral professional.

If you don’t have the facts on your side, it can be an exhausting, expensive and fruitless task to try to pull one over on the court.  As an example, an abusive or chemically dependent parent, who pretends not to be, will likely be found out by the court.  On the flip side, if Parent A suffers from anxiety or depression, but Parent B brings in family members to testify that Parent A is in fact psychotic, Parent B is attempting to establish a fictional reality that should not prevail.  (Unfortunately, one who persists despite the fruitlessness creates protracted litigation that is costly to themselves, to the other party and to the family courts.)  If you do have the facts on your side, which often means not seeking unrealistic relief from the court, chances are the task of bringing out the truth will be less exhausting, less expensive and less fruitless.

The need for the family court’s reliance on neutral professionals is easy to understand when you consider what a small snapshot the court gets of a case’s facts during the finite windows of time the court hears testimony.  If the family court relies on a subjective, skewed version of truth (even sincerely presented by someone speaking under oath), the court’s ruling will not reflect reality.

Subject to the occasional, unfortunate exceptions, a good family court judge will cast aside fiction and manipulation, and rely on a good neutral professional to bear out the reality and the truth of the case.

In Minnesota, legal separations are not common, and are often confused with certain steps that are part of the divorce process.

While not technically correct, the term is often used to describe a couple whose divorce is not yet complete, such as a husband and wife who no longer live together, or a couple who are awaiting trial of their marriage dissolution in court.

The only real difference between an actual “legal separation” and a divorce is the breaking of the bonds of matrimony.  That is, a legal separation addresses custody of children, parenting schedules, asset division, debt responsibility, and other financial issues – just like a divorce – but the couple stays married.

The reason that legal separations are uncommon is mainly that they are useful in very limited circumstances.  There is no residency requirement for a legal separation, whereas a divorce requires at least one of the spouses to have been a resident of the State of Minnesota for at least 180 days.  So, a legal separation is useful if one wants relief in family court but has not lived in the state for very long.

Another circumstance in which legal separation may be appropriate is if both spouses are firmly convicted that, for religious reasons, divorce is simply not an option.  Legal separation allows the couple to get relief from the family court without terminating the marriage.

In most other situations (other than short-term residency or religious convictions), there is little reason to pursue a legal separation rather than a dissolution of the marriage.

One of the most difficult things to encounter in family court is an opposing party who is willing to lie. When my client is reeling about the other party’s dishonesty in court, and expressing the sincere desire to “fight fire with fire,” I often sound like my mother did when I was a kid: “Two wrongs don’t make a right.”  The fact is, as important as a family court case is in your life, it is not worth perjuring yourself.  While I have never been a first-hand witness to someone getting busted for perjury, the real issue is that you want to be able to sleep at night, and to be able to look at yourself in the mirror. If you lie in court, you will never be able to change history, and it could (should?) gnaw at you for years to come.

I estimate that family courts do the right thing about eighty percent (80%) of the time. This is purely anecdotal, without a hint of scientific research.  When courts get it wrong, sometimes it is because the court is misled by an incompetent family court professional (such as a custody neutral or accounting expert), or because the judge or referee is not thinking straight.  But most of the time, the cause of an unjust court ruling is the dishonesty or lack of forthrightness of one of the parties or their attorney. It is a terrible shame when it happens because the family court system works best when good things happen to someone who is genuine and operating the best of faith.