In conclusion, my advice to fathers is that they should not despair. If the children would be better off in the father’s custody, that is worth fighting for, and is winnable. I have gotten many fathers custody, even in the most dismal of predicaments. For mothers, my advice is to take nothing for granted. Against a determined father, the loss of custody is a very real possibility which you should take very seriously if custody is important to you.
If one of us had an affair, how does that affect the divorce? Although it can be emotionally painful and it can devastate a relationship, an affair matters very little for the terms of the divorce . The one exception is if a spouse secretly spent thousands or tens of thousands of dollars on an affair. That counts as “marital waste” and can be calculated into the eventual division of marital assets.
During a divorce, either party can petition the court to pay alimony or “spousal maintenance” to the other. Minnesota laws provide for this type of assistance so the lower earning spouses can maintain the same reasonable standard of living as before. Generally speaking, a court will be more inclined to order a longer period of alimony when the marriage was longer in duration.
If the parties can not come to an agreement on how their marital property is to be divided, the court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.
If your ex-spouse is ordered to pay a debt but doesn't pay it, the creditor may force you to pay it if you originally signed for the credit. This can happen no matter what the divorce decree says. If that happens, you can ask the court to order your ex-spouse to pay you back. The court can also find your ex-spouse in contempt of court for violating the court's order.
All marriages prohibited by law shall be absolutely void, without any decree of dissolution or other legal proceedings, with the following exception. When a person who's husband or wife has been absent for four successive years, without being known to the person to be living during that time, marries during the lifetime of the absent husband or wife, the marriage shall be void only from the time that its nullity is adjudged. If the absentee is declared dead, the subsequent marriage shall not be void.
Denying or interfering with an established parenting time schedule can result in more time being awarded by the court to the parent who was denied their regular parenting time. The court will look at the reasons why the parenting time schedule was not followed. If the court determines that denying or interfering parenting time happens more than once and is on purpose, the court will award more time to the parent who was denied their regular parenting time. The only exception is if the denial of parenting time was to protect the child’s physical or emotional health. The court could also give a penalty to the parent who denied or interfered with the other parent’s regular time, or consider it a factor when deciding on a change of custody.
People often ask, “Does mediation really work?” In a word, yes. We know from years of research that when you compare couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are more likely to be satisfied with the process and the results, likely to take less time and spend less money, and are less likely to go back to court later to fight about something.
If you can prove that an item of property was "non-marital," the court will not usually award that property to your spouse. Non-marital property is property owned by one of you before your marriage, or was a gift or inheritance to you alone during your marriage. Portions of a personal injury or Workers Compensation award might also be non-marital. The court may award non-marital property to the non-owner spouse only if it would cause unfair hardship or under other limited circumstances.
If you or your partner are really committed to their narrative—that one person is absolutely the bad guy, for example—mediation might not work. Green says, “There are some people who are quite intensely invested in feeling like the victim: ‘I’m right and the other person is wrong, and there is no universe in which the other person’s actions are acceptable.’”
The answer to this question can get complicated because it does not matter whose name is on the deed. What matters is the value of the home and the loan balance at the time of your marriage and at present. These factors are important because there may be a marital portion of the home with equity that must be divided, and there may be a non-marital portion, which will not be divided. An attorney can help you figure out what is marital and what is nonmarital.
It can be difficult for a client to know whether his or her lawyer is performing well or not. Sometimes even the best of lawyers does not achieve the desired result, and it may be due to a difficult set of facts, a bad judge and/or custody evaluator or guardian ad litem, or unrealistic expectations. There are some clear indications of bad lawyering, however, which are objectively obvious:
In 2005, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.
In order to make custody determinations the court evaluates the best interests of the children using 13 key factors which are defined in MN 518.17.In addition to being financially expensive, formal custody evaluations are also often highly adversarial and emotionally damaging for all involved, especially the children. In the end, a “victory” is often bittersweet and both parents will have some amount of court ordered parenting time. Rather than seek to prove that one parent is better than the other, it is critical to recognize that both parents are important in different ways – each providing that which can only be given by a mother or a father. You are the experts about your life and your children. You are the best qualified to make decisions about how to restructure your family and parenting time after divorce. As your mediator, I help you evaluate and discuss parenting time options and make child-focused decisions about how each of you will remain significantly involved with your children.
This can be problematic if a party needs to commence a divorce in Minnesota immediately, but neither party has yet been residing here for the requisite six-month period. In such cases, one should seriously consider a legal separation, which has no length-of-residency requirement, and which can afford much of the relief afforded by divorce, such as determinations of property possession, custody, parenting time, child support, and spousal maintenance.  Later, after the six-month residence requirement is satisfied, the case can be converted to one for divorce.
The big warning I have is this: years ago, when the program started, the idea was that the evaluators would give their opinion of how they would likely decide the case in a full-blown custody evaluation, based on the facts learned in the SENE. This honest appraisal of how a months-long custody evaluation would likely turn out is what helped parties to settle their cases.
A trickier question is whether you may record the other parent's conversations with the children. Under the doctrine of "vicarious consent," as long as a parent or guardian has "a good faith, objectively reasonable belief that the interception of telephone conversations is necessary for the best interests of the children," then he may consent to the interception (i.e. listening in or recording the call) on behalf of the children.  However, this can be risky, because if there is any dispute about whether your vicarious consent was in good faith or objectively reasonable, you may still end up having to defend against possible criminal charges or a civil lawsuit. The Wagner case I have cited, for example, was a civil lawsuit by a one parent against the other parent who had recorded telephone calls between the children and herself. The Court allowed that lawsuit to proceed because there was a genuine issue of material fact as to the motivations of the parent who had made the recordings. I don't recommend recording any such phone calls without first consulting a lawyer.
As mentioned above, the court is going to ask what Alternative Dispute Resolution you have used prior to coming to court. In most cases, some type of ADR is required, but there are exceptions, such as some cases involving domestic violence. In recent years many mediators have developed better protocols for accommodating those circumstances, and so some cases involving domestic violence do proceed with mediation today. A victim of domestic violence should seek the advice of counsel regarding any ADR process they are considering.
During marriage, we kept our paychecks, bank accounts, and credit cards separate. How does this affect the division of assets and property if we get divorced? In Massachusetts, all of your assets and debts are considered marital and belong to both of you. It doesn’t matter whose name is on the accounts or credit cards or who paid which bills during the marriage.
Attorney fees vary from hundreds of dollars if the case is easy to thousands of dollars for cases with custody and/or property disputes. It is important that you understand your payment arrangement with your attorney. Many attorneys charge an hourly fee for their services. You will be charged each time the attorney works on your file. Ask your attorney for a written “Retainer Agreement” or letter which explains in detail how you will be charged for legal services.
Depending on the judicial officer, most ICMC's are fairly informal. The judicial officer will come into the courtroom, and give a small presentation to the parties. Literally all presentations are based on a common theme - the benefit of working cooperatively to reach a mediated settlement. The judicial officer will discuss the high cost, both financially and emotionally, of litigating your divorce issues rather than working towards an amicable settlement. The judicial officer will then discuss with the lawyers what issues they believe your case presents, what needs to be done to reach a resolution of those issues, what procedures the lawyers believe are necessary to prepare the matter for resolution (either through subsequent settlement or trial) and how much time will be needed to complete this work. At this point, it will be determined whether a temporary hearing is necessary to determine issues involving possession of the home, parenting of children, temporary child support and spousal maintenance, as well as temporary attorney fees, while the divorce proceeding is pending. Many times the courts will encourage the parties to participate in an early mediation sessions to determine temporary issues. On rare occasions in today's family law practice, a formal temporary hearing may be needed, as described below. In lieu of such a hearing, some judicial officers may request the lawyers follow a more informal process of simply writing the judicial officer a letter providing the economic data necessary to decide temporary issues together with brief argument. The judicial officer will then decide the temporary issue.
But there's another way. Increasingly couples are turning to divorce mediation as a realistic and healthier alternative. A couple meets with a mediator to hammer out an agreement covering all the terms of their divorce, including finances and child custody. This usually takes six to 10 sessions and costs roughly $5,000. As a litigator and mediator I prefer to mediate, if appropriate. It's faster, cheaper and, most importantly, less acrimonious, which is less damaging, not just for a couple, but also their children.
Mediation is confidential and non-binding. Mediators cannot force the parties into a settlement. Rather, mediators keep everyone focused and facilitate the exchange of information. Mediation is not appropriate in all cases, particularly those in which there is a history of domestic abuse among the parties. The actions and concessions of a party during mediation cannot be used against them in court pursuant to the rules of evidence.
At Dwire Law Offices, P.A., we offer trustworthy, personal service and practical, experienced representation. You are treated as a person who has a legal problem that needs solving, not as just another case file. Our attorney, Todd Dwire, has been guiding people through divorce and other family law issues in Lakeville and the surrounding areas for over 20 years
In this first stage, the mediator works with you and your spouse to lay a foundation for the rest of the mediation. You give the mediator background information about your situation, and the mediator explains how the mediation will be conducted. Depending on how well you and your spouse communicate and what the issues are in your case, the mediator suggests an approach that should optimize the chances of reaching an agreement. You'll assess the issues on which you and your spouse agree or disagree, helping you to work together on an agenda for the rest of the mediation.
Grandparents may seek visitation with their grandchildren. Minnesota law also allows a person who is not a parent but who previously lived with the child for two years to ask the court for the right to visit the child. A court will grant visitation if it is in the child's best interests and if visitation will not interfere with the parent-child relationship.