The changing face of Family Law in Minnesota
Hellmuth & Johnson, PLLC is pleased to announce the formation of the Family Law practice group lead by Suzanne M. Remington with the assistance of associate James T. Williamson.
At Hellmuth & Johnson, we recognize that the unfortunate reality is not all marriages succeed. We also recognize that the dissolution process invariably involves mixed emotions for each partner in the marriage and any impacted children or extended family. It is simply not a process that very many people look forward to with highly positive feelings.
Hellmuth & Johnson believes that a client's satisfaction with the dissolution process is directly related to his or her ability to exercise control over the decisions made regarding his/her family and finances. Our goal is to give you all the necessary resources and support to allow you to control your own destiny throughout your dissolution.
To achieve that goal, we actively pursue resolution for you within a variety of alternative dispute resolution methods currently available. If we can achieve your goals via more collaborative means, we will do that with you. If that is not possible and litigation becomes necessary, whether due to your spouse's mindset or your own specific concerns about the end result, we will use our experience to advocate for you and guide you through the court process.
Advocacy does not just happen in the courtroom, however, and our family practice attorneys have the experience and skills to guide you through all phases of your dissolution. We strive to do so in a cost-effective manner, permitting you to make the decisions on how to achieve your goals for your family and for your financial future.
The Changing Face of Family Law.
It is highly likely that you or someone close to you has been through a divorce. As anyone who has been through a divorce, (referred to as a dissolution in Minnesota) can attest, even under the best of circumstances, a divorce is a painful process.
When children are involved, it can be even more difficult to contend with the upheaval in the family. Even without children, couples often struggle with the financial challenges created by a division of the marital estate, and trying to adjust to resources historically used by the family to live together under a single roof being divided between two households. These challenges heighten the need for a creative problem solving approach to the dissolution process.
How it Used to Work:
Willie Nelson once said, "You know why divorces are so expensive? Because they're worth it." Historically, Willie was probably right regarding the cost of a divorce.
In the past, the process by which families went through dissolution was based on a traditional civil litigation model. One spouse sued the other, serving a summons and petition. Then, like in the majority of other civil cases, the parties would exchange lengthy and cumbersome "discovery," which was also often very costly.
While this was pending, on spouse or the other would often go into court on a "temporary hearing" to establish temporary familial support and parenting time schedules.
These "temporary" hearings were often mini-trials with each party submitting lengthy affidavits outlining his or her position, accompanied by often voluminous attachments. Individual experts were often hired by each spouse to bolster their respective positions on custody, parenting time, division of the marital estate, spousal maintenance and child support. If one party was the primary breadwinner, there would be additional jousting over the payment of attorneys' fees and other litigation costs (i.e., experts).
If the parties were able to reach agreements, then those would be memorialized in a judgment and decree filed with the Court. If the parties were unable to reach agreement, they would incur the costs of trial and likely post-trial submissions.
Regardless of the outcome, parties going through the litigation model inevitably felt a loss of control, and wasted financial resources. Parents who went through a trial to determine custody and parenting time for their children routinely felt they had not been heard, and that they did not receive a fair and equitable result. Further, the because the process itself is adversarial, and since members of the extended family often were "fact witnesses" to competing allegations, the conflict was not limited to the partners to the marriage. This heightened level of conflict from the litigation thus took a toll on the extended family, sometimes leading to long term damage to familial relationships beyond that of the former husband and wife.
Searching for a Better Path Forward.
Starting in approximately 2004, Suzanne felt there had to be a better model for families to use when facing dissolution. Suzanne worked intimately with others in the family law community as well as Judge James Swenson who was at that time the Chief Judge of Hennepin County Family Court to form the Financial Early Neutral Evaluation ("FENE") process.
FENE provides resources to people seeking to resolve issues such as child support, spousal maintenance and division of the marital estate. The goal of this process was to provide an affordable method for people going through dissolution to get to the end result on the bottom line issue of "go forward finances" as early as possible. To the extent this could be accomplished early in the process by objective means, the hope was that emotional battles might be reduced and couples could move forward to their separate lives with perhaps less of the conflict inherent in the more traditional "divorce litigation" model.
The FENE model proved successful, and has now been adopted throughout the State of Minnesota. Today, approximately 72% of the cases which go through the FENE process result in settlement. In addition to FENEs, parents can also participate in Social Early Neutral Evaluation ("SENE") in order to resolve custody and parenting access issues. The evaluators are usually a female/male team with one of the professionals having a legal background and the other having a psychology/social work background.
Early Evaluation Spreads to Appeals.
The Early Neutral Evaluation ("ENE") model has also been implemented at the appellate level. Starting with a pilot program in 2008, parties who file an appeal in a family law matter are referred to the Minnesota Court of Appeals Family Law Appellate Mediation Program.
This is helpful as the post decision mediation occurs before parties incur the expensive costs of ordering trial transcripts and drafting appellate briefs. The Minnesota Rules of Civil Procedure were amended in December 2010 making it now mandatory for all parties in a family law appeal to participate in mediation before their appeal will be heard by the Minnesota Court of Appeals.
By statute, parties are required to attempt to resolve their issues before involving the Court. The ENE model is but one of what is referred to as alternative dispute resolution methods. Alternatively, parties can attend mediation or enlist the services of a consensual special magistrate. Parties may hire the services of a neutral expert in areas such as valuing a business or performing complex cash flow calculations.
Today, parties routinely develop parenting plans to resolve custody and parenting time issues. A parenting plan is a document in which parties lay out the parenting time, holidays, vacation schedules and the rights and
responsibilities of the parents.
A parenting plan typically documents standards of conduct and outlines a decision making process and how the parties will exchange information about their children. A parenting plan can also include methods for communication and dispute resolution. By developing a parenting plan, parties can avoid labels such as "sole physical custody" and keep the primary focus on their ongoing relationship with their children.
Think Like a Scout- Be Prepared.
As outlined in this article, there are a variety of processes available to parties going through dissolution in 2012 that place more control in the hands of the divorcing spouses. Of course your (soon to be) ex-spouse may be the "go to the mat" spouse who will only compromise in the face of protracted litigation, or simply may be so righteously convinced of the unassailability of his/her position as to insist that the Court make a determination on a particular issue.
Should this occur, Suzanne and Jim are both experienced and very comfortable advocating for their client's interest in the courtroom. Litigation is now viewed more of a "last resort" when all other attempts to resolve disputes have failed. Therefore, taking time to outline and prioritize your goals gives the client highest level of control of his or her future.
Tips for Getting Started.
If you or someone you know is at a point where a divorce may be in the future there are some steps you can take to prepare yourself. First off, take a deep breath. Although a dissolution can be a difficult process, it is a process and you will get through it and begin what will hopefully be a new and more fulfilling life.
Next, don't go it alone. Find a family member, friend, counselor or therapist to act as your sounding board. Often, just having someone in your emotional corner goes a long way toward alleviating (at least some of) the stress and anxiety associated with a dissolution.
Once you are over the initial shock that often accompanies the realization that the marriage is ending, it is time get organized and educated. This will make dealing with the dissolution process much more manageable, and will help you make better decisions about how to allocate your resources to pay for the dissolution.
A simple way to start is to gather financial documents that will help you and your attorney better understand your personal finances. One great byproduct of this exercise is that, the more you know about your personal finances, the less anxiety you will have about your financial future.
Next, schedule an appointment with an experienced family law attorney. Even if you are not at the point where you want to initiate the dissolution process, talking to an attorney and understanding the process, can be immensely helpful to you in making informed decisions about your future.
You do not need to wait until you have gathered your financial documents to have the first meeting with an attorney. Often, in our first meeting with a client we can help focus the issues and resolve some concerns simply by discussing the issues in your case with you.
Finally, remember that Rome was not built in a day. You do not need to do everything immediately.
You will get through this process, hopefully a stronger and happier person than you were when it began. Suzanne M. Remington and James T. Williamson are here to help guide you through that process. Please feel free to call and setup an appointment.