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.