The purpose of this article, the third in a series on my website, is intended to help sort out Minnesota

Transcription

1 Proceeding with a divorce action is no different than other major life decisions that start with contemplation information gathering and an understanding of the process involved. Family members friends co-workers and/or neighbors want to help and they often do but sometimes the "advice" provided although well-intentioned and based upon love and concern is not accurate. The purpose of this article the third in a series on my website is intended to help sort out Minnesota divorce myths from reality. The information contained in this article is based upon almost 20 years of experience as a Minneapolis family law attorney. I do not claim to have all the answers. I don't. Hopefully however the following "Top 10 Divorce Mistakes" will provide some guidance if you are considering a divorce or are starting a divorce action. 1. Go ahead and sell or transfer marital assets before a divorce; it will be too late for your spouse to do anything about it once when a divorce action starts. 2. A court order is only a guideline to follow; you don't have to follow it if circumstances change. 3. Play hardball from the outset. If parenting issues are key to your spouse seek custody or a parenting time arrangement designed as leverage for concessions on financial issues. 4. Refuse to compromise on anything; if you give an inch your spouse will take a mile. 5. Decide ahead of time what your attorney needs to know; that guilty plea/conviction to shoplifting/theft/fraud/dwi/domestic abuse etc. has nothing to do with my divorce. 1 / 8

2 6. I am looking for an attorney who will guarantee that my financial circumstances will not change after the divorce; my spouse wanted the divorce so why should I have to change anything? 7. A divorce is an opportunity to get even with my spouse for having an extra-marital relationship; surely the court wants to know that my spouse's actions have broken up the marriage and our family. 8. Mediation (or other forms of alternative dispute resolution) is pointless; we just need to fight our way through the legal system to reach a conclusion. 9. If my case goes to trial I am only going to answer questions that I think are relevant to my case; the opposing attorney will have his/her hands full when I get on the witness stand! 10. I have been told by others who have been through a divorce that judges "never" decide [fill in the relevant legal issue] and that judges "always" decide [fill in the relevant legal issue] so I would be better off following that advice and not my attorney's advice. 1. Go ahead and sell or transfer marital assets before a divorce; it will be too late for your spouse to do anything about it once when a divorce action starts. Under Minnesota law selling transferring or liquidating marital assets in anticipation of a divorce can result in a claim for dissipation. The law provides for remedies if marital assets are dissipated in anticipation of a divorce that focuses on making the other party "whole." This could mean compensating the other party for the value of the dissipation and sanctions in the form of attorney's fees and costs. 2 / 8

3 2. A court order is only a guideline to follow; you don't have to follow it if circumstances change. A court order directing actions or procedures is not a guideline; it is a decision requiring compliance. If financial or parenting circumstances change parties can agree to a change in a court order by written agreement (a stipulation) or by seeking a modification of the court order through a motion. Non-compliance with a court order may result in a finding of contempt even if an oral agreement between spouses or ex-spouses originally existed not to follow the court order. 3. Play hardball from the outset. If parenting issues are key to your spouse seek a cust ody or a parenting time arrangement designed as leverage for concessions on financial issues. It is not an effective strategy to seek concessions on financial issues using custody or parenting time as leverage. For obvious reasons the strategy places children in the middle of parental conflict. Furthermore a strategy to protract litigation and cause the other party to "run out of money" as a means to an end can result in an award of bad faith attorney's fees and costs. If a potential client approaches me with this strategy in mind it is not a case I will take no matter what financial resources a client has to pay my attorney's fees. 4. Refuse to compromise on anything; if you give an inch your spouse will take a mile. 3 / 8

4 This is similar to # 3. Refusing to compromise on anything in a divorce because it will be perceived as a weakness is counter-productive and expensive. In fact seeking common ground if only on smaller issues often provides momentum to resolve more important contested issues. Pursuing litigation and ultimately a trial is sometimes necessary for a variety of reasons including a good faith disagreement about how an issue should be resolved. Refusing to compromise on anything simply for the sake of appearing "strong" or "tough" however is certainly no guarantee of favorable decisions. 5. Decide ahead of time what your attorney needs to know; that guilty plea/conviction to shoplifting/theft/fraud/dwi/domestic abuse etc. has nothing to do with my divorce. An attorney's information on past matters is often only as good as that provided by the client. It is essential to be candid with your attorney about your history so that he/she can determine if it is legally relevant to the case and if so how to address this information in your case. Past guilty pleas or convictions for crimes that involve dishonesty (subject to time limitations) can be used to impeach (call into question) a person's credibility (truthfulness) on issues involving disputed events or circumstances in a divorce action. Guilty pleas or convictions for DWI or domestic abuse can impact custody and parenting issues. Your attorney's ability to advocate for your interests is dependent on an accurate disclosure of information. 6. I am looking for an attorney who will guarantee that my financial circumstances will not change after the divorce; my spouse wanted the divorce so why should I have to change anything? In many divorce cases it is simply not possible to maintain the same financial standing as when the marriage was intact. It is true that spousal maintenance if awarded considers the standard of living during the marriage that child support can help defray expenses and that a property division can provide financial resources. The reality is however that in many cases supporting two households rather than one means that 4 / 8

5 some financial adjustments will likely be necessary. Financial resources income debts and assets of course vary from case to case. The standard in Minnesota for division of property is an "equitable" division. An "equitable" division of debts and assets depends on a number of factors. If the "financial pie" to divide is limited having an expectation that nothing should or will change after the divorce is often unrealistic. A more realistic goal in many cases is to seek solutions that will maximize available resources and meet the reasonable needs of parties and the children. 7. A divorce is an opportunity to get even with my spouse for having an extra-marital relationship; surely the court wants to know that my spouse's actions have broken up the marriage and our family. Minnesota is a "no-fault" divorce state. This means that legal decisions are not based upon who is having an extra-marital affair or who is "at fault" for the break-up of a marriage. In some states establishing "fault" is relevant and will impact legal decisions in a divorce. Minnesota is not one of those states. 8. Mediation (or other forms of alternative dispute resolution) is pointless; we just need to fight our way through the legal system to reach a conclusion. Minnesota provides many forms of alternative dispute resolution or resources short of a trial including mediation arbitration mediation/arbitration evaluative early neutral evaluations (both "social" for parenting issues and financial) and consensual special magistrates (experienced family law attorneys who act as a neutral hear evidence and decide cases on a faster track than traditional litigation). At some point in civil cases including divorces in 5 / 8

6 Minnesota absent specific circumstances alternative dispute resolution is required. Most divorce cases settle before a trial. The likelihood of a settlement is enhanced by alternative dispute resolution methods. Sometimes a trial is necessary when a judge must decide contested issues to bring finality to the proceeding. The inability to resolve issues privately does not mean that an out of court resolution is doomed. It is often difficult to discuss emotionally charged disputes and expect a different result. Professionals involved in certain forms of alternative dispute resolution methods are specifically trained to address why conflict occurs to use strategies to minimize conflict and to focus on solutions. 9. If my case goes to trial I am only going to answer questions that I think are relevant to my case; the opposing attorney will have his/her hands full when I get on the witness stand! It does not impress judges when a party (or his/her witnesses) in a divorce case is or appears to be combative defensive or evasive on the witness stand. Challenging the opposing attorney's competence knowledge of the case or refusing to answer simple questions by saying "I do not recall" is equally non-impressive. If a case ends up in trial the stakes are high for the parties the witnesses and for the attorney's. At that point significant money has already been spent and will be spent on attorney's fees and other costs. I counsel my clients that more is not always better. The court is not interested in hearing from a parade of witnesses to make a relevant point and it is not receptive to witnesses (including the parties) that try to "score points" beyond the scope of the questions being asked. A competent and experienced trial attorney knows how to prepare for a divorce trial. It does not help your case to use the witness stand as a place to air your feelings for your spouse as valid as those emotions may be. 6 / 8

7 10. I have been told by others who have been through a divorce that judges "never" decide [fill in the relevant legal issue] and that judges "always" decide [fill in the relevant legal issue] so I would be better off following that advice and not my attorney's advice. Be cautious when you hear the words "never" and "always" based on someone else's divorce experience. Decisions based upon legally relevant issues in other divorce cases rarely predict the outcome in your own divorce case. Every case is different in some way-the issues the circumstances the evidence presented the parties the attorneys and/or the judge. The attorney-client relationship should be based upon trust candor confidence in your attorney's abilities knowledge and experience and in his/her ability to advocate for outcomes that meet your goals. Minneapolis MN divorce attorney Geri Napuck delievers personalized representation to the Twin Cities. She practices exclusively in the area of family law and has extensive experience representing clients in divorces child custody issues parenting issues property division spousal maintenance post-divorce matters paternity and most recently has added pet mediations to her list of mediation services. Contact family law lawyer Geri Napuck today to schedule a free 30 minute phone consultation. She is ready to listen and will meet with potential clients or clients outside of her four office locations in the Minneapolis metro area. 7 / 8

8 Disclaimer/Non-reliance. Online readers should not act or decline to act based on content from this site without first consulting an attorney or other appropriate professional. Laws applicable to your situation as reflected on this site may change and the application of laws to your facts and circumstances may produce different results. Nothing on this site predicts or guarantees future results. Napuck Law Offices P.A. is not liable for the use or interpretation of information contained on this site and expressly disclaims all liability for any actions you take or do not take based on this site's content. 8 / 8