In this article, you will learn:
- Options available to divorcing couples
- How disagreements are settled throughout a divorce
- The general timeline of divorce proceedings
The options available depend on the couple’s objectives. When somebody first approaches me, I go through a series of basic questions like are there children, what are the assets, are you both employed, is everybody safe? That’s the key one, because if any form of domestic abuse or violence takes place, that can radically change the direction of just the first steps in the case from the very beginning.
Once the basic questions are in place, we start to dig a little deeper and get more into the motivation for divorce and maybe some of the client’s objectives on the backend where it all had begun. Circumstances involving kids tend to be a little more complicated only because more work is to be done. As a father myself and a divorced father, I never wanted to be without my kids. But the prevailing reality of divorce is that that’s going to happen. And it’s a matter of finding and determining what’s in the best interest of the client and the children as far as outcome is concerned.
What Happens When Spouses Cannot Agree On Matters Throughout The Divorce?
The backend of every divorce is a trial. So for every issue, whether it’s all of them or some of them where parties can’t find agreement, Minnesota does require mediation to be used before litigation proceeds with very few exceptions. So, in the best-case scenario, if the parties are mutually motivated to divorce, they can agree on most of the issues; perhaps mediation resolves the last couple. Having counsel on both sides is obviously a great benefit as well because they have an idea of how the courts are going to rule on these issues and how evidence makes sense etc.
The troublesome thing is that it only takes one party to throw everything off the rails. If one party wants to be obstructive while still acting ethically, they just can’t agree on terms, there’s nothing you can do about that. That’s where the trial process eventually starts. My objective for every one of my cases is to not see a trial because they are extremely expensive, time-consuming, and the results will never be satisfying with very few exceptions. This is especially true compared to what the parties are capable of achieving either on their own or through the assistance of others for themselves. Even if they’re a little bitter, as far as the actual agreements are concerned, those outcomes are always preferable because up to a certain point and all the way up to a trial, the client has at least some degree of authorship over the outcome. Once it gets to trial, it goes into a black box, and the change is complete. You never know what you’re going to get. You can have an idea, but you’re leaving it to somebody else to decide what’s best for you and your family, even if that family is breaking, and that can be difficult.
The Timeline Of The Divorce Until The Decree Is Finalized
The timeline can be open-ended. Most divorce cases are finished within nine months. That’s if it goes all the way from first filing to trial. Now, there are things that can happen in-between there. Whether there’s a custody evaluation, how extensive the discovery is, if there’s temporary motion practice, if there’s abuse, things can change. But, typically speaking, you’re looking at about a nine-month horizon. As far as the process is concerned, one party can serve another party in Minnesota with divorce papers without filing with the court first. That’s because, in civil actions in Minnesota, we’re very keen, by statute, to identify the issue in front of the other side and allow the parties to try to work on it and resolve it for themselves.
However, in divorces, that tends to be relatively rare because they are automatically complex scenarios, and people disagree and end the marriage for a reason. So the normal track would be somebody files, they serve the documents for divorce on the other side, file with the court, get an assignment, get a judge, and the first meeting that they’ll have is called the ICMC, which is Initial Case Management Conference. That is essentially a meet-and-greet with the court. Technically, it’s off-the-record unless the parties have agreements that they have mutually come to and want to put on the record, usually at the end of the hearing. But it allows the court to do a couple of things. One, it introduces the parties to the court and the court to the parties, but the idea of the court getting a sense of the identities and the personalities involved, including the attorneys. The second thing is that the court wants to understand the issues. So there is a pre ICMC document. It’s two or three pages long with basic information that gives the court perspective. Once we get to the ICMC, then the court wants to hear more about the issues. The third thing that comes out of the ICMC, potentially and often, would be a trial calendar. The trial calendar may list several prospective dates but may be changed later.
From there, you’re looking at temporary motion matters, which could be like you can’t agree on the exchange of the kids, so we have to have some custody and parenting time arrangement right now. Maybe there’s a need for healthcare, and they’re making sure that that continues. There are some other exceptional use issues that take place. All of these can be addressed in temporary motion practice, but basically, temporary motion practice is asking the court to have some rules in place or what’s going to happen right now if you can’t wait till the end. It’s often necessary, especially with couples with young children, to have some of these rules in place right away because, again, there’s a reason why they’re getting divorced. So that just provides clarity and lets everyone know where the boundaries are going forward, and hopefully often, it is another prompt way to try to resolve things and get the separation settled privately. Everybody signs off a stipulated divorce decree after the parties agree to the language.
Beyond those two steps, there’s discovery, which is the process of collecting information from the other side about whatever subject matter that you need. Those could be answers to the questions, request for documents, usually financial and sometimes social in terms of who’s going to look after the kids, where the medical records are, and similar matters. And then, after discovery, which is usually a period of about 30 or 35 days depending on how sufficiently the questions are answered and information’s being provided, there could be more motion practice, including but not limited to resolving or reviewing some prior temporary motion matters as well as starting to create the contours of the coming trial if it comes to that.
There is every incentive for parties to come to their own agreements here. And I’ve had cases that were high net worth couples with young children who are fighting over everything. They got to the date of trial, and then they decided, “Yes, let’s settle this. Let’s get this figured out.” So instead of having a trial, we end up having a seven-hour settling conference through the attorneys and get the matter resolved eventually. So there’s always hope that no matter how far along you are in the process, it can be resolved through mutual agreements. It’s more difficult as you’re getting closer to the trial because there’s so much extra work that’s involved, but I really am a strong advocate for getting issued resolved between the parties because, again, that’s an outcome that once you agree to it, you can live with it as opposed to having it being imposed on you by the court either because of an order for a temporary motion practice or because of a trial.
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