FAQ

What to Know Before Meeting With a Family Law Attorney

Meeting with a Family Law Attorney

Most Family Law Attorneys offer a free initial consultation. This is a great chance for you to get more information about the divorce process and about your case.  Rather than relying on your friends’ experiences and their well-intentioned, but not necessarily wise words of advice (i.e., don’t move out of the house; don’t pay child support until you are ordered to pay, etc.) an attorney can help you make some smart decisions from the start.

Before meeting with an attorney, think about your goals. You may not know the right questions to ask, but if you know what you want, your attorney can explain the process and the law involved to get you there. Whether your goal is to have 50% parenting time or to avoid paying spousal maintenance for the rest of your life (or to get spousal maintenance for the rest of your life), an attorney can help you understand the likelihood of getting what you want from the court as well as what you can do to put yourself in the best possible position to achieve a favorable outcome.

Realistic Expectations for Your Case

An experienced family law attorney should give you some realistic expectations for your divorce. You might be able to shop around and find an attorney who will tell you that you will get everything you want, but that is not going to end well if the attorney has set unrealistic expectations. Anyone who takes an unrealistic stand is going to spend ridiculous amounts of money litigating an issue which s/he is likely to lose. You need an attorney to tell you both the strengths and weaknesses of your positions so you can assess the cost/benefits of litigating each and every issue.

Once you understand the realistic outcomes of your case, you can make smart decisions about how to negotiate and when to dig your heels in and let a judge decide. From the beginning though, the key is giving some serious thought to what your goals are, and working with your attorney to realize what is possible, you can minimize the time, expense, and emotion spent in the divorce process.

Contact us today for your free initial consultation and we will help you better understand your rights and your options for your specific situation.

Do grandparents have rights to visitation in Minnesota?

A recent Minnesota Supreme Court decision makes it easier for grandparents to get visitation rights. Grandparent visitation rights are well-established law in Minnesota. Grandparents play a very important role in the lives of children and no child can ever have enough people loving and supporting them.

While most grandparents just want the opportunity to be part of their grandchildren’s lives, some grandparents want as much time with their grandchildren as a parent might have. Minnesota law also protects the parent/child relationship and Grandparent rights cannot interfere with the parent/child relationship.

It’s more common for Grandparents to request visitation in cases where a child’s parents were never married because the grandparents may not have a relationship with the parents. A Recognition of Parentage (ROP) is a document both parents sign designating the father of a child whose parents are not married at the time of the child’s birth. In a recent decision issued on June 4, 2013, the Minnesota Supreme Court held that a Recognition of Parentage (ROP) is a “proceeding” as applied to Minn. Stat. § 257C.08.

The legal issue addressed the interpretation of Minn. Stat. § 257C.08, subd. 2, which lists the proceedings that can give rise to a request for grandparent visitation:

“In all proceedings for dissolution, custody, legal separation, annulment, or parentage, after the commencement of the proceeding, or at any time after completion of the proceedings, and continuing during the minority of the child, the court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried minor child, after dissolution of marriage, legal separation, annulment, or determination of parentage during minority . . . .”

This case is important for grandparents because the Minnesota Supreme Court decided that a ROP is a proceeding which gives the court jurisdiction to decide a grandparent’s request for parenting time. The dissenting justice in the case said an ROP is not a proceeding in the common sense definition of a “proceeding”. This decision makes it easier for grandparents to ask the court for parenting time even if there has been no motion for custody or parenting time.

If you are a grandparent hoping to spend more time with your grandchildren, or if you are a parent who feels your parenting time with your children is being threatened by grandparents, an experienced family law attorney can help you understand your rights and how to protect them for the best interests of the child.

What is an ICMC in a Minnesota Divorce?

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.

Should You Stay Married for the Sake of the Children?

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.

Why Mediate a Family Law Case?

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.

Divorce Settlement: When Is It a Good Idea?

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. 

Child Custody and Child Support: How Are They Related?

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 I Need a Lawyer to Get a Divorce in Minnesota?

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

Three Basic Questions to Ask an Attorney at Your Initial Meeting

Most family law attorneys offer a free initial consultation. The free initial consultation is not just an opportunity for you to better understand the process of divorce, but it is ultimately the best opportunity you have to find an attorney who will be a good fit for you and your situation. There are so many family law attorneys that you can find the one who understands you and communicates with you effectively if you take the time to meet with and interview attorneys.

  1. What is your experience:  in this county? Representing people like me? While an attorney can be successful in any county, having some experience with particular judges gives an attorney a better sense of strategy and be helpful in preparing a client for his/her experience.  It can also be helpful if your attorney has represented other clients who faced a situation similar to yours.  Asking an attorney how many cases s/he has won is a question no attorney can answer well.  “Winning” is not an easy thing to define in a divorce and very few clients would say they felt like they “won” anything in the end. Asking an attorney to give you a sense of the initial strengths of your case may be more beneficial.
  2. How often can I expect to communicate with you and how do you prefer to communicate? Some attorneys are busier than others and some rely on assistants to communicate with their clients. If you prefer to talk to the attorney and the legal assistant, you should ask your attorney at your initial meeting (before hiring an attorney) how often your attorney is typically available to talk to you. Many attorneys, like the rest of the world, now rely on email to communicate with clients quickly. Email may be better for clients who are working and don’t want to talk in public about their divorce, but some clients prefer to talk to an attorney “live” rather than communicate via email. Find an attorney who communicates the way you prefer.
  3. What is your hourly rate and what is the retainer fee? These are important questions for every client to ask. While choosing the cheapest attorney may not be in your best interests, choosing the most expensive attorney may not be wise either.  If your case goes on longer you’re your planned (because spouses and judges do not always act the way we expect them to act), you want to be able to manage your legal fees.

Ask your attorney for specifics about billing. Attorneys bill for miscellaneous items differently. Some attorneys will bill for every email and phone call, no matter how short, and some will only bill for emails or phone calls that take a few minutes or more to answer. Attorneys bill differently for copying and scanning documents. Some attorneys accept credit cards.

Finding an attorney who listens to you and who you believe has your best interests at heart is the best attorney for your case, but be practical in your selection too.

Information provided in these pages, including blog posts, is for general informational purposes only and does not constitute legal advice. Please consult an attorney, or contact Christine Callahan at ccallahanlaw@gmail.com for more case specific information.

Meet Christine Callahan

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Christine Callahan is an attorney practicing solely in the area of family law across Minnesota. She is also a mediator, a Minnesota Rule 114 qualified neutral, and she is on the Court Rosters of approved Early Neutral Evaluators for Scott and Carver… Read More

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