MARITAL DISSOLUTION – COMMONLY ASKED QUESTIONS
Our firm has had the privilege of serving hundreds of clients of the years in regard to several family law related legal issues, including dissolution of marriage. In the course of responding to inquiries of several of our clients or prospective clients, it has become evident that we are hearing some of the same questions over and over again. This article will briefly address some of those questions related to divorce proceedings.
1. How Is A Dissolution Action Commenced, And What Procedures Are Necessary To Finalize The Divorce?
In rare instances, a dissolution of proceeding can be commenced jointly in what is known as a summary proceeding. These cases are limited to marriages of less than eight (8) years where the parties own no real estate, have no children, and have limited debt and assets. In other rare instances, parties can file a joint petition, but there is no clear advantage to a joint petition since the parties still have to reach an agreement on all issues and present that agreement to the court. Parties may wish to retain one attorney to assist them in this process, but that often raises ethical concerns and may place the attorney in a position of having a conflict of interest and expose the attorney to possible claims that one or the other party was not properly represented. In the vast majority of cases, a dissolution action is commenced by one party personally serving upon the other a summons and petition for dissolution of marriage and that the personal service cannot be made by the party or the attorney representing the party. The action is commenced upon the service and the district court will not be involved in the proceeding until the summons and petition, with an affidavit of service, is filed in the district court.
Minnesota law encourages, and in some instances, requires, mandatory non-binding mediation or arbitration before the case is heard by a district court judge. The parties, of course, are free to pursue any type of mediation or arbitration they desire to help them reach agreement on some or all of the disputed issues. At the same time, in some instances, the parties are allowed to file motions with the district court early on in the dissolution proceeding if there are temporary issues that need immediate resolution.
At any time prior to trial, the parties can agree on all issues involved in the dissolution action, including child custody, child support, spousal maintenance, property division and division of debt. If such an agreement is reached, the parties will execute a document universally known as a marital termination agreement. This agreement, along with a proposed findings of fact, conclusions of law, order for judgment, and judgment and decree, will then be forwarded to the district court and may be eventually finalized administratively (where both parties are represented by counsel), or will be resolved with a default hearing before the district court judge. In cases where the parties cannot reach an agreement, the matter will be scheduled for a pre-trial and eventually for trial. The parties can agree at any time during the process, but if the matter is tried before a district court judge, the judge will ultimately make all of the decisions on how the dissolution will be resolved. The vast majority of cases are resolved before trial.
2. How Much Does A Typical Dissolution Proceeding Cost?
Unfortunately, there is no such thing as a typical dissolution proceeding. In most cases, it is virtually impossible to determine in advance the overall expense of the process. The expense is usually determined by two primary factors: (a) whether the parties are able to come to an agreement early on in the process; and (b) the complexity of the issues involved in the proceedings. In most dissolution proceedings, attorneys charge an hourly fee, although some attorneys will charge a flat fee, usually with some well-defined contingencies if the case is not quickly resolved. In Minnesota and in most jurisdictions, it is unethical to charge a contingency fee in dissolution matters (i.e., a percentage of property awarded to the client). In addition to attorney fee expenses, there are other costs incurred during the course of the action depending again upon the complexity of the issues in the case. Independent custody evaluations, real estate and business appraisals, and the retention of other experts will all escalate the cost of the proceeding. It is our practice to provide a cost-benefit analysis to our clients early on in the proceeding, but ultimately individuals will make their own decisions about how much they are willing to expend on any particular issue.
3. How Long Do Dissolution Proceedings Last?
It is the policy of most jurisdictions to have all of their dissolution cases resolved within one year of filing of the case. It is important to note that this timeline is not in effect until the petition is actually filed, regardless of when it is served. Again, in complex cases, continuances are routinely granted to allow time necessary to complete, for example, custody evaluations and complex discovery issues. If the parties are able to quickly reach agreement on all issues involved in the proceeding, it may be possible for a judgment and decree to be entered by the district court within six to eight weeks after the proceeding began. Again, the length of the proceeding is largely dependent upon the parties’ ability to agree and the complexity of issues that they face.
4. What Is The Difference Between A Decree Of Legal Separation And A Decree Of Divorce?
A divorce decree generally resolves all issues between the parties, including a permanent division of property, and an order with respect to custody and support, and dissolution of the marriage. A decree of legal separation, of course, does not result in the dissolution of the marriage, and only decides a division of property and an award of support or custody on a temporary basis. If the parties eventually seek a divorce, all of those issues will have to be decided again in the dissolution proceeding. The advantage of a legal separation, although few, is that a petition for legal separation can be served at any time, whereas a petition for dissolution of marriage requires residence in the state of at least six months. Also, a decree of legal separation will determine the rights and responsibilities of the respective parties on an interim basis, which may be helpful in regard to certain issues, such as division of debt incurred during the separation, when the case eventually proceeds forward in a dissolution proceeding. The disadvantage of a legal separation is that it often duplicates the expense if the parties are eventually divorced, and it postpones the ultimate disposition of various issues to a later date when it might be more difficult to obtain the information or evidence necessary to allow people to arrive at a reasonable agreement, or for the court to make a reasonable decision at trial.
In most cases, it is important to retain the services of competent legal counsel to help you understand the dissolution process and to proceed as effectively and efficiently as possible. Although courts are very respectful toward pro se litigants, there usually is a decided advantage for parties who are represented by counsel. Dissolution proceedings can be procedurally very complicated, and all due caution should be taken to ensure that your rights are adequately represented.
For questions related to marital dissolution or any other family law or estate/probate related questions, please call Nic Wenner at (612) 355-2202 for a free telephone consultation.