Frequently Asked Questions — Minnesota

An ICMC is an Initial Case Management Conference in a divorce or custody matter. The ICMC is scheduled by court administration and is held in a court room. It’s essentially a chance for the judge to meet the people who are divorcing, or asking for custody, and explain how beneficial it will be for them to reach an agreement regarding the unresolved issues rather than leave it in the judge’s hands.

Each party provides financial information so the judge can determine whether the parties qualify for reduced fees or whether one party should pay more than 50% of the fees for the early neutral evaluation (ENE) process. The judge can also make recommendations for moving forward in cases where one spouse is afraid of being harmed by the other spouse.

FAST AND INEXPENSIVE WAY TO SETTLE DISPUTES

The ICMC is scheduled much faster than a motion hearing would be scheduled because the idea of an ICMC is to encourage people to work toward an agreement before they get too embroiled in a fight. They are encouraged to maintain control over their own divorce by working with professionals on a court-approved roster of mediators who can offer their professional insight into the strengths and weaknesses of the case for each party while helping them reach their own resolution.

The parties can agree to attempt to reach a resolution through the early neutral evaluation process, or they can choose to skip that step and move straight into litigation. At any point of the process, parties can reach a settlement on their own or with the help of their attorneys.

Experienced Family Law Attorney Christine Callahan is also a Rule 114 neutral, Mediator, and is on the court roster of SENE and FENE evaluators in Scott and Carver counties. Whether you need an attorney who understands the process inside and out, or you need an experienced evaluator, contact us today. 952-746-2350. ccallahan@tbattys.com.

Following the ICMC, there are two separate processes to address parenting/custody issues (SENE) and financial issues (FENE). See our blog posts addressing those specific processes for more details.

Some parents come to me stating that they would like to get a divorce and they are unhappy in their marriage, but they want to stay together for the sake of their children. They believe that if they get divorced while their children are young, their children will be negatively impacted. We are not advocates for divorce, but we are advocates for healthy, happy parents and families.

Hal Arowitz and Scott O. Lilienfeld published an article in “Scientific American” entitled “Is Divorce Bad for Children”. They make the claim that children typically have adverse reactions for a year or two, but most kids adjust well over time. The responses to their article on social media are generally critical of the claim that children adjust and do well over time and people question the legitimacy of the study. Perhaps people are critical because no one wants to think divorce is ok. Their study suggests that 25% of children whose parents divorce end up carrying some long term relationship effects into adulthood, but 10% of people whose parents did not divorce have similar relationship issues, which would suggest there is an increased long lasting effect on 15% of the people whose parents divorced when they were children.

How divorce impacts children when they are young and into adulthood seems to be an impossible thing to measure. There have been many studies done on the impact of divorce but how can we ever know if it was the divorce itself which negatively impacted children, or if it was fact that their parents were unable to communicate effectively with each other, or the fact that their parents had opposite opinions on how best to raise their children? Who knows if these same children would have struggled if their parents had stayed together?

I would say, of course divorce is bad for children, but in some cases, is staying together better for children? I would like to see a study done on the following questions: What is the impact on children whose parents stay together in a loveless marriage where there is no mutual respect? I have had clients who spent years sleeping in separate bedrooms just to stay married “for the children”. They essentially live separate lives and only do things together when the children are involved. These people are unhappy and are perhaps unknowingly setting an example for their children that marriage is an unhappy experience. I have to believe this experience would have a negative impact on children but this is a much more difficult thing to measure because people who stay in loveless marriages tend to do so quietly and without letting others know.

When you are deciding whether a divorce is right for your children, the real question should be, is a divorce right for you? Just as the flight attendants tell parents to put on their own oxygen masks before their children, you have to take care of yourself before you can take care of others.

Family Law Mediation gives spouses an opportunity to resolve their disputes regarding property division, child support. child custody, parenting time, spousal maintenance and virtually any other issue which arises as a result of a divorce. Spouses can attend mediation with or without attorneys and can start mediating before they contact an attorney.

Advantages of Mediation over Litigation

There are many advantages but the most often cited are:

• Saves money
• Saves time
• Saves your sanity and preserve the relationship beneficial to co-parenting after divorce
• Allows you to keep control over the outcome of your case

Mediation can save you money whether you attend with an attorney or without. The mediator’s role is to help parties reach an agreement that works for both parties. The mediator does not represent any one party and therefore does not advocate for any one position over another. This allows the mediator flexibility to be creative and point out options which the parties may not have come up with on their own, or options which their own attorneys may not have suggested because the attorney’s role is to advocate for one side over the other.

Even if spouses do not reach an agreement on all issues, mediation can result in a partial agreement which allows parties to save money litigating things which they don’t need to litigate. All parties in a family law matter are required to attempt some sort of settlement before appearing at a hearing and Mediation is great option for attempting a settlement.

Settlement in a divorce might sound like someone is not getting everything he/she deserves because someone is “settling”. Quite the contrary, a settlement in a divorce is more likely to be in line with the wishes of the husband and wife than an order created by a judge or child support magistrate.

The parties in a settlement have control over the details of the agreement and do not have to rely on a court which must follow sometimes inflexible laws when creating a judgment and decree. Parties are free to use creative solutions to meet the individual needs of each family. In reaching a settlement agreement, each party should consider what his/her priorities are. For example, one spouse may be more concerned about having cash to buy a house, while the other spouse may have a large retirement portfolio but limited income with which to offer a cash settlement. It is possible to take money out of a retirement portfolio without penalty during a division of assets as part of a divorce and doing so may be the best solution to provide cash to a spouse who needs it without depleting income to the other spouse. Another example would be the situation where the priority for one spouse is parenting time, while for the other parent it is the legal title of “sole custody”. In that case, both parties can fulfill their priorities because the party wishing to have the legal title “sole custody” can have it while the other party can still have 50% parenting time. “Sole physical custody” in Minnesota does not carry the rights and responsibilities it once did and may be merely a matter of semantics with no real everyday effect.

If the parties can realize that their priorities are different they may each get exactly what they want in a settlement. It is easy in the emotional atmosphere of a divorce process to get caught up in winning every little battle—but the focus really should be on each party feeling that he/she is being heard, respected and ultimately coming up with a plan that works for everyone in the family. It is truly rare for any couple to come through a divorce and feel that it went “well”, but the goal should always be to get through it with as little acrimony as possible and to sustain a level of decency and respect throughout which is more likely in a settlement than in litigation.

While settling without legal consultation is ideal for any couple wishing to save on legal fees, an experienced family law attorney who actually believes in helping people reach a settlement can save a divorcing couple a great deal of emotional energy and time, and can be invaluable in creating a settlement that works within the law and benefits everyone involved.

In Minnesota, child support is directly tied to parenting time, but not custody. The law in Minnesota was changed in 2007 regarding how child support is calculated. Child custody can be joint or sole physical custody, and it won’t impact the child support obligations of the parties. The order for parenting time however, is a factor in the child support calculations.

A parent who spends less than 10% time parenting will pay the most child support. The idea is that while a child is with a parent, that parent will spend money on food, clothing, and activities. A parent who spends 50% time with his children will pay less child support than a parent who spends less than 45%.

While the support obligation may be lowered for a parent who has more parenting time, a parent must carefully consider what is best for the children with regard to a parenting schedule regardless of money. A parent will spend money directly caring for the child in his/her care and while not exact, the child support calculator used in Minnesota family law cases is intended to make the support equal based on both parents’ income and time caring for the children.

Do it yourself divorce is becoming increasingly popular in every state, including Minnesota. Many people cannot afford to pay the hourly rates family law attorneys charge and end up fighting the most important battle of their lives alone. Even the retainer for most family law attorneys can make legal representation unattainable for spouses divorcing.

In recent years, the Minnesota courts have provided an increasing number of resources for spouses to use in representing themselves in family law cases. The courts do not provide more resources because they think people don’t need attorneys, they simply accept the reality that some people cannot afford attorneys and it better for all parties, the judges, and court administration, if everyone understands the rules of the game.

You can find a wealth of information on the Minnesota Courts website at www.mncourts.gov and at the family law self-help center. There are many legal nuances that may be missed though and if you want some guidance before you head off to court on your own, you might want to consider something fairly new to Minnesota family law: “limited scope representation”.

Limited scope representation allows a person to get legal advice, and even document drafting for a set fee and nothing more. No retainer. No hours of fees running out of control. Sound too good to be true? Limited representation can be the perfect fit for someone who is not afraid to go into court alone and who just needs a little guidance and possible documents drafted to fit his/her specific circumstances.

To get more information on family law, see the American Bar Association Guide to Family Law at:

http://www.abanet.org/publiced/practical/books/family/home.html