Pitfalls In Handling Your Own Divorce

I have seen an increase in people trying to draft their own Divorce Judgment and Decree, which often leads to numerous problems and additional fees and expense to redraft the Decree or for the need to move to amend it because of ambiguities. Some terms or omissions can be impossible to correct afterwards.

If you have children, real estate, assets in excess of $20,000, pensions or issues relating to custody, parenting time, spousal maintenance or child support it is best to retain an experienced family law attorney to draft the final paperwork.

I have represented numerous clients when their paperwork has been rejected by the trial court or worse has been accepted, but has failed to properly address all issues or foreseeable issues. Family law is complicated and has extensive statutes and common law set forth in a large scope of cases that a layman will not understand or properly address. Neither the court or the clerk’s office can or will give legal advice.

Once the Decree is accepted and filed many of the terms are not modifiable at a later time. Property settlements become final. Other terms may be modifiable if there is a substantial change in circumstances, but still may be difficult and expensive to attempt to modify.

There are numerous nuances in drafting custody and parenting plans that would benefit the input of an experienced divorce attorney. These agreements are generally not easy to change or modify. Vague or incomplete parenting plans often leads to numerous disputes and issues that can cause the noncustodial parent to lose important parenting time when a dispute arises.

Determining child support under the calculator is not as easy as it seems as there are numerous collateral issues that may not be properly addressed such as imputing income for less than full-time employment, bonus income, or issues and complexities when dealing with self employment, or overtime income. There are also numerous complexities in determining what the actual percentage of parenting time is for each parent is under parenting time schedules. A lawyer can also make sure the issue of the child dependency tax exemptions are properly addressed and drafted in the decree as well as other matters such as security in life insurance is included to make sure there is adequate support in the event of a death.

Spousal maintenance terms have to be dealt with extremely carefully or unintended results can easily happen. If proper waivers are not included with specialized language a party may leave itself open for extended or continuing spousal maintenance or attempted motions to do so. A lawyer should be used in every case dealing with spousal maintenance cases.

If you own a home it is also important to have a lawyer’s assistance. It is essential to make sure the complete legal description is included or you can have expensive future title problems. An agreement to sell the home needs critical detailed information included to properly address possible unforeseen issues such as difficulties in facilitating the sale or default or possible short sale ramifications and other issues, including possession, payment requirements and cooperation terms.

Dividing retirement assets and pensions have many complex issues that can lead to serious unintended consequences if not properly addressed. Survival benefits, valuation and tax issues and other complexities needs the input and advice of an experienced attorney. Often a separate Order (QDRO) needs to be prepared with numerous electives and options that can involve tens of thousands of dollars in differences depending on the electives selected, or more, if there are errors made that generally may not be later modifiable.

Generally when a divorce starts many people are on an emotional roller coaster and often have some temporary depression issues. Many people have feelings of guilt or remorse or even anger and cannot properly evaluate what is fair and equitable or consistent with the law. They may overlook important issues or make unwise concessions that may haunt them for years as they try dig out of a deep financial hole or give up custody or parenting time they cannot later change.  They may find they are entitled to much more than they are aware of if they overlook nonmarital assets or other spousal maintenance issues. A good family law attorney will protect you from making a poor decision without careful thought and evaluation.

The family law rules and rules of civil procedure are very complex and you will be expected to follow them. If you miss deadlines you may lose or waive important rights to make submissions or argue issues.

Do not assume you can easily represent yourself in a divorce and navigate drafting a divorce decree that properly protects you. Retaining an experienced divorce attorney is a wise and prudent investment to make sure all issues are fully evaluated and addressed and your rights are protected.  I have been a lawyer for over 33 years and practice exclusively in family law, custody, divorce and mediation. I will make sure your rights are protected.

Resolving Parenting Disputes With A Parenting Consultant

Many Family Law Lawyers and some Judges are now encouraging parties to stipulate and agree to use a Parenting Consultant to resolve parenting time disputes in divorces, post dissolution issues, parenting time scheduling issues for holidays and vacations as well as to settle joint legal custody issues such as schooling disputes, extra curricular activities, church disputes, transportation and other children’s issues. Generally Parenting Consultants are precluded from modifying actual legal and physical custody designations but their decisions can effectively make major changes that, in effect, come to close to doing so.

Generally Parenting Consultant’s are experienced family law lawyers with some additional training or experienced psychologists, counselors, or other mental health professionals. The powers of a Parenting Consultant are generally defined by contract and stipulated powers set forth in the Decree or separate Court Order. Their powers are not defined by statute or law. There have been efforts to introduce and pass laws and statutes to clarify their roles and powers, but to date a statute has not been passed. It is important to carefully review the Consultant’s Contract and any Proposed Order appointing a Parenting Consultant as you are actually, in effect, giving this individual the powers of a judge to promptly settle and order an outcome on issues presented to the Parenting Consultant concerning your children if they fall within the scope of the powers designated in the Order or contract that has been signed.

I have served as a Parenting Consultant and been involved with many Parenting Consultants in my cases. They can be very helpful, but can also create another layer of expense if the Parenting Consultant appointed is not experienced or fails to promptly make clear complete unequivocal decisions that are fair, impartial and based on the best interests of the children. They are designed to save attorney fees and court expenses by allowing an expedited resolution of parenting time issues. It allows parties to minimize attorney fees by not requiring the formal preparation of motions, affidavits and memorandums of law by your lawyer and paying the court filing fees and requiring a court hearing that may take months and instead allow parties to submit emails and letters addressing disputes involving the children that in theory can be quickly ruled upon by the Parenting Consultant.

Generally the form Orders and Contracts of Parenting Consultants provide their decisions are subject to review by promptly filing a motion with the trial court within the time period set forth in the Order. Courts and Judges love to appoint Parenting Consultants as it can in many cases cut down on the family law motions filed with court and clear the court’s calendar to address its other pressing assigned cases.

It is critical to discuss with your lawyer all ramifications of stipulating and agreeing to a Parenting Consultant before doing so. There are some Parenting Consultants who like any other profession are not the best in promptly and properly determining parenting issues. Their experience and skills vary greatly. Choose the Parenting Consultant with great care. Once appointed it can be very difficult to have one removed and it will be impossible to by-pass the Parenting Consultant unless the Consultant resigns or you obtain an Order removing the Consultant.

It is critical the Consultant lay out clear ground rules for submissions so people are not overwhelmed with lengthy last minute submissions. There are no rules or procedures in the law addressing how or the timing of submissions for Parenting Consultants. If you have a controlling or difficult ex spouse or opposing parent it can lead to more disputes and expense as it can encourage parents to raise every minor or trivial parenting issue with the Consultant as it is as easy as sending an email without the expense of scheduling and preparing a motion or affidavit for a court hearing. Sometimes parents do not as easily compromise because they can simply have  the Consultant rule on it. Sometimes Parenting Consultants fail to make clear comprehensive rulings addressing all issues as they receive numerous length emails raising many issues and counter issues and sometimes they are reluctant to reconsider or expand the scope of their decisions.

It is true that you generally have the right to appeal or seek to challenge a Parenting Consultant’s decisions in court, but many judges will give the Parenting Consultant’s decision deference although they may not be required to do so. Appealing the decision can be expensive and you have doubled the fees and expense as you have also paid the Consultant substantial fees to review and rule on the issue previously. In many cases I have observed the fees paid to a Parenting Consultant can be very substantial as it can lead to voluminous emails and multiple submissions and frequent involvement with the Consultant if a parent is controlling and difficult and has the financial means to do so.

It is important you have a family law attorney to discuss and help you through the process and decisions involving Parenting Consultants. Unless you appoint an experienced competent Parenting Consultant who carefully details the procedures and have an Order defining the scope and authority of the Consultant there can be many unexpected pitfalls and fees as well as other difficulties that you may be bound to follow that may end up being more expensive than other alternatives.

Lack Of Employment Increases Probability of Divorce

In Fusion on August 1, 2016 Author, Taryn Hillin, noted that an extensive Harvard Study confirms that men who are not able to find employment or play the role of “breadwinner” are more likely to get divorced. It is noted that gender expectations on men and women influences relationships.

There are many issues that impact the stability of relationships and marriages. But a man’s failure to financially contribute or substantially assist with economic necessities of marital expenses has now taken a larger influence on the issues leading to divorce or relationship instability.

It appears obvious financial distress, lack of employment, or inability to pay marital expenses will cause stress and resentment in a spouse. With the slow growth of our economy and the increasing costs of housing, food, and healthcare it appears critical for men to substantially contribute to the financial obligations in the marriage.

If parties find themselves unable to overcome their financial difficulties or marital unhappiness through marital counseling or other religious or family support it is wise to consult with an experienced divorce lawyer or family law attorney before taking any rash action.

Divorce Can Have Some Positive Benefits For Children

I have seen many ugly divorces and custody battles. It is without doubt an ugly divorce where children are used as pawns or placed in the middle of conflict will cause serious emotional harm to children. It has been a pleasant change that the procedures and family law rules have now been changed to encourage amicable resolution of custody disputes without ugly litigation through Mediation or Social Early Neutral Evaluation and to minimize Temporary Hearings until amicable Alternative Dispute Resolution is attempted.

Some experts are also now confirming that divorce can have some positive benefits to children.  Jackie Middleton has stated in Canadian Living that many divorce children can experience these five benefits:

1. Divorced children often learn to be Resilient and Adaptable.

2. Divorced Children often learn to be more Self-Sufficient.

3. Divorced Children often have an increased sense of Empathy towards others.

4. Divorced Children will often not take their own marriage for granted.

5. Divorced Children often learn more about each parent based on the quality time they spend alone with each parent individually rather than in a family setting.

There is far from consensus opinion on how divorces affect children. But based on my observations and experience it is very important to keep the children out of the conflict. Children do far better when they have both parents in their lives and are not subject to a parent constantly bad-mouthing the other.

Your children will be much better off, as will you, if you find a way to settle your Parenting Disputes and avoid Custody Litigation and a Custody Trial. Sometimes this is not possible, but do your children a favor and do your best to keep them out of the conflict.

A good divorce lawyer can litigate when necessary, but also can guide you through more amicable options and procedures that can lead to an amicable settlement. It is critical to promptly retain an experienced divorce attorney at the beginning of any divorce or custody dispute.




Cohabitation May Now be Grounds to Modify Spousal Maintenance

The legislature recently passed an amendment and new law to be effective August 1, 2016, to allow a court to consider Cohabitation as grounds to modify, reduce or terminate spousal maintenance. Minnesota Statute 518.552 was amended to add a subdivision 6 to allow for the reduction or termination of spousal maintenance in some limited circumstances when there is cohabitation by an ex-spouse.

Having dealt with this issue in several past cases and encountering the difficulties in successfully proving grounds to reduce maintenance when there is cohabitation by an ex-spouse, an amendment to the statute was long overdue. There have been many abuses where a party has moved in an employed new significant other and continues to receive spousal maintenance forcing an unfair situation and allowing parties to double dip or, in effect, have a former spouse subsidize a comfortable standard of living for a significant other even though that individual has the financial resources or income to contribute to household expenses.

Unfortunately the amendment is watered down and still makes it difficult to prove  up a case for reduction or termination of maintenance. There are many states that create a presumption that cohabitation leads to a rebuttable presumption that grounds have been met to terminate spousal maintenance.  In this amendment the law now provides that in determining whether spousal maintenance should be reduced, suspended or reserved the court should consider: (1) whether an obligee would marry a cohabitant but for the maintenance award; (2) the economic benefit the obligee derives from the cohabitation; (3) the length of the cohabitation and the likely future duration of the cohabitation; and (4) the economic impact on the obligee if maintenance is modified and cohabitation ends.

In my opinion the new law falls far short of what was needed and invites new speculation and continuing litigation by allowing the suspension or reservation of spousal maintenance. The key will be how courts going forward interpret the new amendment.

Due to the myriad of factors to be analyzed in a cohabitation modification case it is essential you immediately obtain an experienced divorce attorney when confronted with this issue.

Gray Divorces Are Increasing!

A recent development is that in the last several years I have represented many individuals in their fifties and even sixties who are commencing divorces after many years of marriage. Twenty years ago I rarely ever represented fifty plus aged people in divorces.

Many experts are writing about the reasons for this reality. I wish to share an interesting article from the Huffington Post:

The 5 Big Reasons Why Couples Divorce After Decades Of Marriage
Here’s what to do before it’s too late.
Mar 20, 2016
Linda Melone Next Avenue
By Linda Melone
If you or someone you know recently divorced after 20 or more years together, you’re not alone. Splitting up later in life, sometimes called “gray divorce,” is on the upswing. In 2010, one in four divorces occurred among people age 50 and above and the 50-plus set was more than twice as likely to be divorced than in 1990, according to the National Center for Family and Marriage Research at Bowling Green State University in Ohio.

But why do couples split up after so much time together? And how can you prevent this from happening in your marriage?

There are five big reasons why couples divorce after decades of marriage:
1. They Grow Apart
The process that leads to gray divorce isn’t typically a sudden event or trigger, says Stan Tatkin, author of Wired For Love. Rather, it often happens slowly over time. “It’s like an unbreakable plate you drop repeatedly,” he says. “The relationship develops microcracks inside the structure you can’t see. Then it finally reaches a critical mass and shatters.”

Hormonal changes that arise with age can cause significant shifts in sex drive.

— Jessica O’Reilly, author of ‘The New Sex Bible’

It’s a reason many couples that split late in life say they’ve simply grown apart. This usually comes as a shock to close friends and family, such as when Al and Tipper Gore separated in 2010 after 40 years of marriage.

An undercurrent of dissatisfaction can happen for a number of reasons, but several dominant themes crop up regularly, says Tatkin. “Often one person — usually the woman — feels she’s given up too much. She may have put aside her career as she raised the children. She feels the wear and tear of the relationship because it wasn’t collaborative.”

2. Their Age
Other times age is a factor. A big age difference that was not an issue at the beginning of a relationship may become a problem later in life, Tatkin says. Or people may hit middle-age and crave a reboot.

Tatkin explains that people go through physiological and biological “brain upgrades” at certain times in their lives, including at age 15 and again at 40. “Every time you experience one you want to go back [in time],” he says. Starting a relationship with a younger person satisfies this urge for some people.

3. They’re Bored
Steve Siebold, a psychological performance and mental toughness coach and author of 177 Mental Toughness Secrets of The World Class, cites boredom as a factor. “Being around the same person 24/7, depending on the relationship, can lead to boredom,” he says. In other cases, people stop trying. “You work hard, play hard and take care of business, but you’ve stopped being the attentive, attractive spouse. You’ve allowed yourself to become complacent.”

4. Their Money Issues
Differences in spending habits and financial difficulties may finally come to a head cause a break-up. One spouse may be a big spender while the other likes to save, Siebold says. “The kids’ activities, expenses and college funds eat the family’s discretionary cash and you’re deep in debt,” he notes.

5. Sex
Sexual incompatibility can become more pronounced, says Jessica O’Reilly, author of The New Sex Bible and Astroglide’s resident sexologist. “Hormonal changes that arise with age can cause significant shifts in sex drive. And though every couple of every age experiences differentials in desire, these can become more pronounced with age.”

Couples who may be heading down the path to divorce can take steps to pull themselves back with these five tips:

1. Put the Relationship First
You should be about protecting each other in harsh environments and have each other’s back, says Tatkin. “You must become experts for each other and protect each other in private and public — and never threaten the relationship.” In addition, Tatkin says, couples should have a strong sense of why they’re together. “Know the purpose that you serve as a couple,” he says.

2. Take Care of Yourself
Gaining weight, not exercising and dressing slovenly sends a message to your spouse that you don’t care anymore, says Siebold. “Try cutting the carbs, trimming the fat and heading to the gym,” he advises.

3. Assess Your Role in the Problem
Before you give up on your marriage, look in the mirror, says Siebold. “If there’s a boring person staring back at you, you may be the problem,” he notes.

And if that is the case, Siebold suggests making a decision to create some excitement in your life. Plan a new adventure together, start a new business, learn a language or develop a new skill together. These activities create new stories and may reignite your passion.

4. Talk About Sex
Couples who talk about their sexual expectations, changing needs and vulnerabilities can manage their differences, O’Reilly says. “Communication is essential. As your body changes you need to discuss what feels good both physically and emotionally to cultivate intimacy,” she adds.

5. Talk About Everything Else, Too
Lastly, Tatkin says you both need to tell each other everything. That’s the only way to work out your problems.


My experience is that a reality is that people change and often grow apart and have different interests after their children are grown and move on with their individual new lives. It appears people also often have less patience and are unwilling to live under the control of a bossy financially or emotionally controlling spouse realizing they are not going to live forever and want to pursue what they deem satisfying and rewarding. They no longer focus on the children’s needs, but their own, which now have changed.

The reality is it is important to retain an experienced divorce attorney in a grey divorce as often times your best earning years are behind you and it is important to obtain a fair and equitable property settlement and sometimes spousal maintenance to secure your financial future. Dividing pensions, retirement assets, or businesses and real estate can often be complicated. Promptly seek an experienced divorce attorney if you find yourself in this now common scenario.

Jeff from Arrigoni Law has 33 years experience as an attorney and has been practicing exclusively in family law, divorce, and mediation for over 27 years and will work hard to protect your rights and secure an equitable fair settlement.

Significant Other’s Can Impact Custody Decisions

In an unpublished opinion in Newman vs. Newman, A15-0561 (Minn.Ct. App. Dec.21, 2015) the court of appeals reviewed an appeal from a divorce involving a 16 year marriage involving three minor children with a mother who had been a full-time homemaker since 2003 and a father who recently retired early. The trial court granted joint legal custody, but granted the father sole physical custody.

Mother appealed and claimed the trial court erred in not granting her joint physical custody or sole physical custody.  The appellate court noted there had been acrimony and a lot of personal attacks in the case and that a current harassment restraining order precluded father from harassing the mother. It was noted this conflict did not support their ability to cooperate under a joint physical custody arrangement.

The court also found that although there was not evidence of domestic abuse, the court had deep concern about the safety of the parties’ daughters around the mother’s live in boyfriend who had been convicted of felony invasion of privacy of a minor for hiding a video camera in his 17 year-old, step-daughter’s bathroom. It was specifically ordered the mother’s parenting time not include her boyfriend and that the mother’s boyfriend directing impacted the physical and emotional safety of the children.

In addressing the best interest factors the court noted nine were neutral, one inapplicable, two favored the father and one favored the mother. The deciding factor was the interaction and interrelationship of a person who may significantly affect the children’s best interests.  In this case the mother’s decision to live with a convicted felon who had harmed his step-daughter lead to her losing physical custody.

If custody is an issue in a divorce or paternity action it is crucial to immediately consult with an experienced divorce lawyer or knowledgeable family law attorney. Decisions about living arrangements, significant others, and high conflict disputes with your spouse can preclude sharing joint physical custody or even lead to a longtime homemaker to lose physical custody.




Preparing For Divorce

The Divorce Process has been made more civil and informal with numerous recent rule and law changes to require or strongly encourage mediation or other alternative dispute resolution and to limit time-consuming and expensive formal discovery. Often times it still will be stressful and emotionally difficult and it still can turn into prolonged litigation if your spouse is angry or determined to go down that path.

There are some steps you can take to make the process easier, less expensive and to protect yourself. A few recommendations were recently summarized in an article published in Huffpost Divorce by Lisa Helfend Meyer on February 2, 2016 titled “6 Things to Do Before Filing for Divorce.” These are the recommendations:

1. KNOW YOUR FINANCES. Make sure you try to copy or obtain access to financial records, account statements, tax returns, financial statements and any lists of assets, debts or purchase documents for real estate. At a minimum you should try to locate the last 3 years of tax returns and if necessary contact your accountant or investment advisor or investment account representative and obtain several years of records or statements. If homes or real estate has been refinanced or recently purchased you should obtain from the mortgage broker a copy of financial statements or loan applications completed and any appraisals completed in the process. This can provide a general overview of your income, debts, and assets to assist your divorce attorney to plan a strategy for the best way to proceed. If a spouse is angry it is important to obtain these records early to avoid expense to duplicate them or in some cases avoiding a spouse from losing them or worse destroying them.

2. GET YOUR AFFAIRS IN ORDER. Take care of financial transactions before the divorce starts. If you have joint credit lines or home equity lines you may want to contact the bank or mortgage company and freeze the credit line or have your named removed from joint credit cards for future charges or contact the credit card company and advise them you do agree to be liable for future charges and ask your name be removed if you are concerned about spouse going on a spending spree and damaging your credit or charging attorney fees on a joint credit card. You cannot change life insurance beneficiaries after divorce starts and generally you are restrained from liquidating assets except for necessary living expenses or for attorney fees. You may also wish to video tape or take pictures or inventory valuable personal property such as jewelry, guns, tools or equipment or consider having items informally appraised.

3. SET MONEY ASIDE. It often times is wise to have an emergency fund set aside to hire a lawyer or if possible to pay necessary living and debt expenses for 60 to 90 days or longer because a spouse can close down accounts or close out credit quickly and leave you vulnerable until mediation or court action is taken, which now can take 60 days or longer before you can schedule a temporary hearing if mediation is unsuccessful.

4. KEEP A JOURNAL. When custody or parenting time is in dispute it is important to document your involvement with the children. It often is helpful to keep a daily journal of all your involvement with the children, their activities and schooling and all communications and conversely your spouse’s lack of involvement. You want to make sure you are active at school events and conferences as well as day care selection and pick up and drop off as well as doctor or counselor appointments. Do not allow your spouse to control or limit your involvement. Do not work voluntary overtime and minimize weekend work or travel commitments.

5. AVOID SOCIAL MEDIA. Pictures, posts and internet activity is commonly being used as evidence in custody and parenting time disputes. Things you to do through social media is often discoverable and venting about your spouse on social media will be met with restraining orders, sanctions or worse. Stay away from social media for your own protection.

6. SEE A THERAPIST. A divorce can be very stressful and situational anxiety or depression can often happen. It is important to protect your emotional health and obtain help or support through a therapist , pastor or strong family network. Family  support is helpful, but they may not always give you the best advice or be able to appropriately address the feelings or problems you are experiencing. If you feel stressed, overwhelmed or depressed it is important to seek professional help.

These are important first steps, but it remains critical to promptly seek advice from a divorce lawyer or experienced divorce attorney before you take any rash action such as moving out, changing jobs or work schedules or refinancing properties, purchasing new residences or taking out joint credit lines or loans, when divorce is on the horizon. Do not agree to temporary parenting schedules, custody or temporary financial arrangements until you consult with a knowledgeable family law attorney. Temporary agreements can limit your future options or turn into permanent binding terms that may not be in your best interests.


Moving On After A Marriage Ends

Clinical Psychologist, Kristin Davis, has recently published a thoughtful article in the Huffington Divorce section on February 1, 2016 suggesting 5 ways to move on after a relationship ends, which is sound advice to consider after a divorce. I concur and believe the tips can help an individual transition and overcome the emotional and psychological pain that divorce often brings. These are the recommendations:

1. TAKE STOCK. As painful as it might be it is helpful to think through your take and what you learned from that relationship. Would you do things differently the next time? What struggles on both sides may have contributed to the marriage ending? Many people just want to run away and hide or escape another way through other means such as alcohol, dating, or other destructive behavior and this will only lead to more problems and potential heartaches.  Instead analyze , where do I see myself? What have I learned? What , if anything would you do differently in the next relationship? How is it best for you to move on? Some may realize there are positive things and aspects of the break-up such as freedom, optimism, empowerment and relief. Remember this is an opportunity for a fresh start and to recreate yourself and pursue dreams or things that may never have been realistic or available when married.

2. PURGE SOCIAL MEDIA. Make sure you remove your former spouse off your social media. Delete and remove picture, emails, and texts. Do not follow him or her on Twitter, Facebook or Instagram. If you fail to do so you will be confronted with continuing painful reminders and will lead to you being stuck in the past and not focusing on the future.

3. INDULGE AND EXPAND HORIZONS. Reconnect with family and old friends. Expand your knowledge, take a class and read some interesting books or take up a new hobby. Exercise can often help with overcoming emotional pain. Be open to things, experiences or old hobbies. Explore things you have never done.

4. DO NOT RUSH INTO A NEW RELATIONSHIP. Many professionals believe rushing into dating is not the best way to move past your last relationship. It is often wise and better to give yourself some time and space before you rush back into another relationship. Give yourself time to spend on yourself to step back, evaluate and provide an opportunity for clarity and introspection. People often fail to analyze the mistakes of the past and end up repeating things that lead to future failed relationships. Look for patterns that can help prevent future relationships mistakes.

5. ACCEPT CHANGE AND UPHEAVAL. It often is not easy to get over a divorce or the end of a relationship, but do not dwell on the past every minute of the day. Over time you will heal and the ride will become less bumpy. Your new freedom can lead to many new adventures and you have an opportunity for a new beginning. Never give up. There will be future opportunities for love and fulfillment.

I am not a mental health expert or psychologist but as a divorce lawyer with several decades of experience and after representing a few individuals in multiple divorces and experiencing and witnessing the struggles some clients have I believe these recommendations are extremely helpful to prepare for your exciting future.

Attorneys Fees in Family Law

In a divorce or family law matter it is important to factor in the cost of attorney fees and Court costs in an action when deciding how you wish to proceed. It is foolhardy to not seek legal advice in divorce or family law matters. It is wise to understand it often may be difficult and expensive to obtain a Court order directing your spouse to pay your attorneys fees in the matter.

Under the law a Court can award fees to enable a party to carry on or contest the proceedings, provided it finds:

(1) that the fees are necessary for the good faith assertion of the party’s rights in the action and will not contribute unnecessarily to the length or and expense of the proceedings;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Minn. Stat.518.14.

A Court can also award fees against a party who unreasonably contributes to the length or expense of the action, or if a party commits fraud, or takes what a Court determines are bad faith actions in a case. Fees and costs can be awarded at any point in the proceeding.

Attorney fees can be obtained when there is a gross disparity in incomes or financial situations in a case, but it often can be expensive and a lengthy process to obtain an award of fees. Sometimes Courts wait until trial after they hear and consider all evidence before deciding an issue involving fees, or make a small temporary award to allow a party to contest the case, but the award often falls far short of the attorney fees required to take the matter through a time-consuming litigation process or trial. It is folly to assume you are going to be awarded every dollar of fees you are incurring, even if there is a disparity in incomes because, in general, Courts are conservative in awarding fees and do not wish to risk encouraging potentially unnecessary litigation. By granting a large temporary award of fees Courts realize this may lead to more litigation rather than a settlement. Generally Courts want matters to settle and not be litigated.  They have very busy Court calendars already and often times ugly divorce litigation is not their favorite way to spend their time.

Instead of counting on or assuming you will be awarded attorney fees the best strategy is to attempt to minimize your own fees because 90% of cases settle short of a trial and it is never easy to negotiate or convince your spouse to voluntarily pay both sides attorney fees.

First carefully review and read your Retainer Agreement with your attorney to understand how you will be billed. Generally numerous phone calls or e-mails to your attorney will lead to a large attorney fee bill quickly. Do not use your attorney as a therapist or as a way to soothe your hurt feelings as it can be very expensive. Find a good friend, or family member, or therapist to talk about your emotional feelings and disappointment. Try to streamline communications to address multiple issues in a single call or e-mail and try not to constantly barrage your attorney with piecemeal information. If possible try to amicably resolve personal property disputes with your spouse without involving your attorney as fees can escalate fast over battles about old TVs or computers or used furniture that have small real current market value.

As hurt as you may be, try to be civil and respectful to your spouse. Personal or verbal attacks may give you temporary satisfaction, but may lead to a barrage of payback attempts to get even or other strategies to punish you in a revengeful manner that will lead to much larger attorney fees for both sides. It can also lead to expensive collateral actions such as Orders for Protection, or Harassment actions, which lead to more fees.  Do not let your emotions drive your actions. Treat your divorce as a business transaction and negotiations, as hard and as cold as that sounds.

Be honest with your attorney and do not hide information or assets. The more your attorney knows the better they can quickly plan how to settle your case. Trying to hide information or assets is unwise and can be deemed fraudulent and that can lead to an attorney fee award and also discredits your credibility with the Court. This can lead to very bad results no matter how good your attorney may be. It can also lead to length discovery requests, or information requests, from your spouse’s attorney, or depositions that lead to much higher attorney fees.

When your attorney requests information or documents, timely get the documents and provide them in an organized fashion. Do not procrastinate in getting information or documents as this leads to follow-up e-mails, letters, or phone calls and more fees and expense. You can save a great deal of expense by carefully organizing the statements, by file folder or clips in order. There are far too many cases where clients bring in a grocery bag of documents accumulated over years that are a mess and take hours to organize and often are incomplete, which again leads to higher fees for a paralegal or staff to try to organize and additional frustration for you.

Keep your children out of the middle of your divorce. Do not attempt to alienate your children against the other parent. If a party feels a parent is undermining a relationship with their children this will lead to anger and hard feelings and more litigation or efforts to get even. It also will cause great emotional harm to your children.

Lastly follow your attorney’s advice. Do not believe you know better or assume you can take shortcuts without seeking the attorney’s input, in particular in negotiating important settlement details, because there may be legal reasons for negotiating a certain way. When in doubt, talk to your attorney, and always before you commit orally, or in writing to any settlement seek your attorney’s input. After you verbally agree to a settlement with your spouse it often can be very difficult to backtrack and negotiate important other matters that may have been forgotten or neglected and this leads to litigation as people get entrenched in verbal promises made along the way.

I know everyone tries to keep their costs down in a Family Law matter, but usually it is more cost effective to discuss your case and the actions that you are considering before you take action, rather than trying to undo it after the fact. It should always be the attorney’s goal to settle your case short of going to trial, which will minimize your own attorney fees because it can be very difficult, time-consuming and cost prohibitive to go through a trial and to attempt to make your spouse pay your attorney fees. Even if the Court does decide to award you attorney fees the Court may only award a small portion of the fees you incurred.