BASICS OF DIVORCE – CUSTODY FACTORS PART 2

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

The statute regarding custody of children sets forth two important additional rules. First, it states that the Court may not give greater weight to one of the best interest factors to the exclusion of the others.  That is, the Court must address all of the factors in its Order prior to issuing its decision.  As a practical matter however, certain factors tend to come to the surface and tip the scales in custody cases.  In some cases where one parent has served as a child’s primary caretaker during his or her lifetime, said parent may emerge as the child’s sole physical custodian during the divorce process.  Likewise, in cases involving untreated substance abuse or mental health issues, those issues often become the focus of an unfavorable custody decision.

Second, the law states that the Court may not consider conduct of a parent that does not affect the parent’s relationship with the child.  There is typically a lot of hurt that goes along with going through a divorce and in many cases, one spouse has had an affair and is already in a new relationship.  While it may be very unfair, barring some danger to the children, the affair is typically not considered by the Court in the proceeding.  Likewise, while it can be difficult to discuss, the proliferation of the internet has led to more discussion about pornography in divorce proceedings.  And again, generally, the Court does not address the issue as it relates to custody unless it has a direct impact on the children.

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BASICS OF DIVORCE – CUSTODY FACTORS (PART 1)

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

The Minnesota legislature has created a list of factors that our Courts are required to consider when they determine custody of children.  The factors are used by custody evaluators when they make recommendations to the Court regarding custody.  They also influence the feedback of early neutral evaluators and guide parent’s custody negotiations during the divorce process.

The list is commonly referred to as the “Best Interest Factors” and is set forth in Minnesota Statute 518.17 as follows:

(1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

(11) the child’s cultural background;

12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

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BASICS OF DIVORCE – TYPES OF CUSTODY

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

My next several postings will focus on custody and parenting time.  There are 2 different types of custody in Minnesota, legal custody and physical custody.

Legal custody is defined as the right to determine a child’s upbringing, including education, health care, and religious training.  There is a very strong presumption under Minnesota law that parents will share joint legal custody; that both parents will participate in making major decisions in a child’s life.  However, that presumption can be overcome upon proof of domestic abuse by one parent against the other or that there is such a strong divide between parents on the issue of education, health care and/or religion that it would be detrimental to the child to not select one parent to make those decisions.  In those cases, one parent would be awarded sole legal custody.

Physical custody is defined as the routine daily care and control and residence of a child.  Like, legal custody, physical custody can be awarded to one parent solely or to both parties jointly.  However, unlike legal custody, there is no preference under the law for one form of physical custody over the other.  Rather, physical custody is determined on a case-by-case basis.

Minnesota law sets forth several factors that must be addressed when a Court determines whether custody will be awarded to one parent or both parents.  My next post will address those factors.

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DIVORCE OPTIONS – SUMMARY

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com.

All of the options related to divorce can be very overwhelming when you are in the thick of it.  The most important thing to take away from my postings about divorce options is that they exist.  You can pursue court intervention if you need to.  You do not have to go to court if you and your spouse do not want to.  This is your family and your future and your divorce should be tailored to your needs.

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DIVORCE OPTIONS – COLLABORATIVE DIVORCE

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

For some spouses, the most important part of getting divorced is coming out on the other end with their dignity and a workable relationship with each other.  In those cases, collaborative divorce is an option.

The concept of collaborative divorce was started in Minnesota and has now spread worldwide and to other areas of the law.  It is founded on several premises.  First, parties who engage in the collaborative process commit to full and free disclosure of all information and documentation pertinent to the divorce so that both parties can make informed decisions about their futures.    Second, the parties ensure confidentiality throughout the divorce process so that they can feel free to discuss all issues without reprecussions.  Finally, the parties waive their right to initiate court proceedings during the collaborative process thereby avoiding the mudslinging and degradation often associated therewith.

Parties who choose to follow the collaborative model sign a participation agreement at the outset of  the proceeding that sets forth the foregoing ground rules.  Parties meet with their collaborative attorneys early in the process to discuss individual needs and concerns.  Subsequently, a full and final settlement is reached through a series of four-way meetings with both parties and their respective attorneys.  In some cases, experts such as child specialists, financial neutrals or divorce coaches are drawn into the process to assist with parties’ specific needs.  All the while, the parties and their lawyers proceed through the divorce process with dignity and respect with the goal of crafting a settlement that addresses both parties legal, financial and emotional needs.

If you are thinking about going collaborative, you should be aware that the commitment to staying out of court (contained in the participation agreement that you will sign) means that you will have to release your collaborative attorney and hire a new attorney if court intervention becomes necessary.  The advantage of the rule is that most parties remain committed to resolving their divorce through the process because they do not want to start over (among other reasons).  At the same time, the disadvantage of the rule is that you are forced to start over if the collaborative process does not work for you.

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Divorce Options – Uncontested Divorce

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

Some parties are able to sit at the kitchen table, and using the law as their guide to varying degrees, reach an agreement regarding all of the terms of their divorce. 

Parties to an uncontested divorce typically seek out an attorney who understands their goal of memorializing their agreement in a sound legal document with little or no substantive changes.  The attorney will explain that he or she can only represent one party to the proceeding.  The other party will either represent himself or herself and sign a waiver of independent counsel or consult with an attorney in some capacity for purposes of finalizing the agreement. 

The attorneys involved will still review the agreement and explain where the terms of it diverge from what a Court would typically do.  However, most attorneys will not interfere further if they are satisfied that you understand the information that they have conveyed to you.  Still, you can expect that many attorneys will have you sign a document indicating that your legal rights have been adequately explained to you and you are choosing to enter into your agreement despite the explanation.

Assuming that you stick to your agreement, the process for finalizing the dissolution of your marriage should be much less time consuming and costly than a contested divorce.  The attorney will draft the Summons and Petition for Dissolution of Marriage and Stipulated Judgment and Decree (a/k/a, Divorce Decree), for you and your spouse to review.  Once the documents have been signed by all involved, they will be submitted to the Court with your filing fee.  If no children are involved or both parties are represented by counsel, no hearing will be necessary.  Rather, your divorce will be finalized administratively and you will receive notice of your divorce date in the mail.  If only 1 party is represented by an attorney and there are children involved, a short, simple hearing (known as a “Default Hearing”) will be required to go over your agreement on the record.

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Divorce Options – Mediation

Cortney E. Whitehouse, Bloch & Whitehouse, P.A., (952) 224-9977, 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, www.blochandwhitehouse.com.

Mediation is a process by which a neutral person facilitates communication between parties in an effort to assist them in reaching an agreement in their case.  While you may question how on Earth you will be able to agree on anything with your soon-to-be ex spouse, you would be surprised how many people are able to find some common ground during the divorce process with a little help.

There are several advantages to divorce mediation.  First, mediation eliminates risk because the parties own the process and the outcome.  Most of the time, both parties have some risk in submitting an issue to a court for decision.  What may seem like a common sense decision to you, may not be so black and white under the law.  And, parties can reach creative agreements in mediation that a judge may not have the authority to Order.

Second, mediation can substantially reduce the cost of a divorce.   In general, it is substantially less expensive to share the cost of one mediator than to submit a dispute to the Court for resolution.  And, while attorney involvement will be necessary to draft your agreement, your attorney fees should pale in comparison to the cost of litigation. 

Finally, parties are less likely to involve the Courts in their disputes post-divorce if they reach a mediated agreement during the divorce process.  Mediation can teach parties to communicate and resolve disputes despite the circumstances.  When disputes arise relative to children or the like in the future, those skills often re-surface and enable parties to avoid major conflict.  And, parties are less likely to have disputes about an agreement that they reached through mediation than one that was imposed on them by the Court.

Mediation can take place at the outset of a case, before anyone has been served with divorce papers or anything has been filed with the court.  It can also take place after service but before filing.  If successful, parties can often reach an agreement and get divorced without ever setting foot in a courtroom.

Mediation can also take place once a case has been filed with the Court.  In fact, in cases where Early Neutral Evaluation is not available or selected by the parties, Courts will require parties to participate in mediation (except in cases involving domestic abuse). 

Finally, many divorce decrees require parties to mediate a dispute prior to seeking court intervention post-divorce.  The use of mediation in that instance often serves to avoid expensive, protracted litigation.

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Divorce Options – Court Intervention

Cortney E. Whitehouse, Bloch & Whitehouse, P.A., (952) 224-9977, 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, www.blochandwhitehouse.com.

If you are facing a divorce, you have options for resolving the issues in your case.  The next several postings will describe some of the options for getting divorced in the Twin Cities metro area of Minnesota.

 The traditional approach to a divorce involves court intervention.  The divorce process is initiated by service of a Summons and Petition for Dissolution of Marriage on the other party and filing the document with the Court.  The Summons and Petition is a general document that sets forth the basic facts of a marriage.  The responding party is required to serve and file an Answer to the Summons and Petition for Dissolution of Marriage within 30 days of receipt of the document.   Both parties are required to pay a filing fee at the time of filing of approximately $400 (check your county website for specific filing fee requirements). 

However, as a general rule, gone are the days when cases languished for years and  judges made all of the decisions for parties to a divorce case.  Today, in many metro area counties, courts have installed a system of Early Case Management.  Under the system, an initial hearing is set within approximately 3 weeks of filing – typically called an “Initial Case Management Conference” or “ICMC.”  The ICMC is informal – no testimony is taken and no decisions are made by the judge.  Rather, the purpose of the ICMC is to determine the issues in a case and to provide parties with tools for resolving their disputes.  Parties walk out of the hearing with a plan for exchanging information and documentation and alternative dispute resolution as well as a date for checking back in with the Court, often via a telephone conference.

One of the forms of alternative dispute resolution that is often offered to parties at an ICMC is “Early Neutral Evaluation” or “ENE.”  ENE is a process by which both parties are given the opportunity to provide their perspective on a given issue and an experienced evaluator provides the parties with feedback about the likely outcome on the issue if they put it in the hands of a judge at trial.  ENE can be conducted on social issues (custody and parenting time) and/or financial issues.  ENE occurs early on in a case to avoid the damage done to ability to settle after substantial litigation.  ENE is voluntary – meaning neither party can be compelled to participate.  It is also confidential – meaning that, with a couple of exceptions, information exchanged during ENE is not disclosed to the court if parties are unable to reach an agreement through the process.  There is a cost associated with ENE that varies from county to county.  As a general rule, the cost of ENE pales in comparison to litigating a case to its conclusion.  And, a very high percentage of cases resolve through the ENE process.

In those counties where ICMC and ENE are not yet available, parties are still required to engage in some form of alternative dispute resolution (unless they meet a domestic abuse exception).

In those cases where no resolution is reached through ENE or the like, efforts are often still made to resolve a case up to the time of trial.  Counsel and the parties will likely participate in telephone conferences, settlement conferences as well as a Pretrial Hearing prior to trial.  And, in the event of a trial, issues have generally been narrowed and items resolved that can be resolved prior to that time.

 As you can see, while there are certainly cases where trial is necessary to resolve disputed issues, the family court system has evolved in many counties to permit resolution by the parties when possible.

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