In some Minnesota divorce cases, parties can get a divorce without ever stepping foot in the courthouse. In order to avoid a court hearing, the parties must reach a complete agreement. If you start the court process and are unable to reach an agreement, you will have court hearings (starting with an Initial Case Management Conference, Temporary Relief Motion Hearing, Scheduling Conference, or a Pre-Trial Conference). But if you and your spouse have a signed Marital Termination Agreement before your first court date, you may never need to go to court.

If the parties have no minor children or if both parties are both represented by counsel when kids are involved, the divorce may be granted without a final hearing. If a hearing is involved (when there are kids involved but not two attorneys, or in some cases where the judge has some concern even though there are no children or there are two attorneys), it will just be a final default hearing. It is a rather simple hearing, typically only the Petitioner and the Petitioner’s attorney are required to be there (although the Respondent and Respondent’s attorney can be there, and sometimes it is helpful for them to be there). The Judge will want a record of the facts of the case and the terms of the agreement. The Petitioner (and the Respondent if there) will be sworn-in and the attorneys will ask questions identifying the facts and agreements. The signed document will be identified and entered into the record. The Judge may ask additional questions regarding the best interests of the children. And that will be it. The Judge will sign off on the agreement and the divorce will be entered with Court Administration in the next few days or weeks.

A frequent question I hear is “Will my spouse have to pay my attorney’s fees?” My answer to this is “Don’t count on it.” In Minnesota, attorney’s fees can be awarded one of two ways: need-based or conduct-based.

Need-based awarded mean that one party cannot afford the fees and that the other party has the means to pay. In many cases this can be a problem as neither party can really afford additional fees. Conduct-based fees are awarded when the court finds a party to be acting in bad faith and unreasonably contributing to the length or expense of the proceeding. As frustrating as the process can be, that does not necessarily mean the court will award conduct-based fees. And even if there is an award, that does not mean the other party will pay it. The expectation for many attorneys (myself included) is that my client will pay my fees. I am not interested in chasing down the other party for payment. If the other side happens to pay for what my client has already paid for, than that money will be passed along to my client, but I don’t wait for the other side to decide to pay me.

There is also the practical problem that getting an award for attorney fees means that you have gone through the court process and are now in front of a Judge asking for a decision. If you are going to court on other issues, then it may make sense to ask for attorney fees. But, it does not make any sense to incur additional fees just for the possibility that the court will grant an award. In most cases, parties agree to each pay their own attorney, but the issue of attorney fees can be a discussion of negotiation and sometimes the parties will agree to a contribution for fees, or will offset fees in the property division.

For several military parents a deployment to serve their country can cost them dearly in a custody battle.  While parts of the Servicemembers Civil Relief Act applies to military child custody cases, granting more time for troops to respond and prohibiting judgments against parents while they are deployed, there has  been a movement for additional protections for military parents while they are deployed.  Leo Shane III has an in-depth article, Custody Battles Can Become Rude ‘Welcome Home’ for Military Parents on Stars and Stripes.

A divorce officially starts with the service of the Summons and Petition. The Summons is a very short document (2-3 pages) which notifies the other party (the Respondent) that a divorce lawsuit has been started. The Summons identifies any real estate owned by the party, provides notice of parent education requirements, encourages alternative dispute resolution, and provides temporary restraining provisions. Once the divorce has been started, neither party is to harass the other, change insurance coverage or beneficiaries, or dispose of marital assets. The petition lays out the facts of the case according to the first party (the Petitioner). These facts include information as to the parties’, their children, and their assets, debts, and incomes, as well as certain facts that are required by the court (i.e what county the parties live in, whether anyone is a member of the military, if an Order for Protection exists). The Petition also includes a “Prayer for Relief” - what the Petitioner is requesting from the court (i.e. the dissolution of marriage, provisions related to child custody and support, division of assets and debt).

The Summons and Petition must be personally served on the Respondent for the divorce process to officially start. This can happen by someone over the age of 18 (but not the Petitioner) personally handing the documents to the Respondent and then signing an Affidavit of Service in front of a notary. Personal service can also happen with the Respondent signing an Admission of Service in front of a notary. Once the divorce has officially started, the Respondent will have 30 days to prepare a formal Answer and Counterpetition (although in many cases this timeline is extended to allow the parties time to negotiate a settlement).

Now every attorney has a different approach to starting the divorce process. At least ever month I speak to someone who has just been served divorce papers, and the situation is typically this:

Some random third party has shown up at their home or work place to hand them a blank envelope containing only the Summons and Petition. They read the documents, not really knowing what they are or what they are supposed to do. They get to the Prayer for Relief at the end of the Petition and freak out – the Petitioner is asking for anything and everything and just seems to be crazy (The Petitioner earns more than the Respondent but is asking for spousal maintenance; The parties have been separated for several months during which time the Petitioner has hardly expressed an interest in the children but is now asking for sole legal, sole physical custody and child support; The Petitioner is asking for all of the property and requesting that the Respondent take all of the debt).

The Respondent is now scared and angry, does not trust the Petitioner or the Petitioner’s attorney, and is ready to fight.

This is a very bad way to start a divorce – there is no trust or desire to work towards a resolution. Now maybe there are some cases which require a tougher approach, but in most cases, I find that a softer approach will result in a quicker (and cheaper) resolution with less conflict for the family. I tend to work with my client to ask for reasonable relief in the Prayer for Relief (what my client really wants and what we reasonably believe will be the final result). I always serve papers with a cover letter explaining what the papers are. In many cases, I have worked with my client to prepare a proposed Marital Termination Agreement to be included with the initial papers. If my client and I believe the Respondent is likely to sign an Admission of Service, and there is no reason the divorce needs to be started immediately, I will mail the documents, along with an Admission of Service to the Respondent, and the cover letter will explain that I need the Respondent to complete the Admission of Service and return it to me within a certain time frame, otherwise I will need to have the documents personally served upon Respondent. In most cases, the Respondent will return the Admission of Service.

The Respondent may consult with or hire an attorney, but instead of focusing on how to fight the Petitioner, guessing what the Petitioner may be asking for, and discussing all the possible issues, the Respondent and the attorney can review the proposed agreement and discuss settlement options. Right away we can determine what the parties agree to and what areas we need to work on, tailoring the case for the situation. How you start your divorce can have a big impact on how long your divorce process will be and how much time and money you spend fighting.

The school year has just started.  Hopefully the decision as to where your children will be spending the school year has been made.  As more and more parents agree to a joint physical custody arrangement, disputes over what school the kids are going to increase.  When one parent has sole physical custody it is usually a given that the children will be attending school in the district where that parent lives.  But when parents have joint physical custody and the children spend significant time during the school week with both parents there is rarely any guidance on which school district the children will attend.

And when disputes arise, there is rarely a quick and easy resolution.  Most decrees require that the parties attend mediation prior to returning to court.  If mediation is unsuccesful, only then can you bring a motion in court asking the judge to decide which school your kid is going to.  It may take a few months just to get the court date, and the judge can take up to 90 days after the hearing to issue a decision.  Some parents use the services of a parenting time expediter, a neutral party who will first try to mediate disputes, but can then serve as an arbitrator and make a decision.

Unfortunately, very few parents are proactive in addressing this issue, which means the school year can start before the decision is made.  I have heard at least one story in where the child ends up spending half the time in one kindergarten class and half the time in another class and another district.  In addition to all of the other concerns about going to school in two different disctricts, the child was not meeting requirements for any kindergarten, which meant that the child would most likely be repeating kindergarten by the time the parents figured things out.  This issue is not limited to Minnesota parents, I came across this article Parents’ Procrastination In Custody Cases Crowds Family Court Documents in The Wichita Eagle by Ron Sylvester which indicates parents across the country face this problem.

There is a simple way to avoid making your child repeat kindergarten or letting a stranger decide where your kids go to school - talk about it with the other parent and make the decisions early!  If you already have a joint custody arrangement, start talking about where the kids will go to school at least a year before your child starts school or as soon as one parent moves from the current school district.  If you are just separating from the other parent and considering a joint physical custody arrangement, have the conversation about school districts during your negotiations.

In every case I have where the parties will have joint physical custody I ask about where the kids will be attending school.  When we have older children who have been going to the same school district for years, we may put in the court order that the children will remain at district _________.  When we have younger children, or are uncertain where the parties will be living, sometimes we designate one parent’s home as the home that will determine where the kids go to school.  Taking the time to discuss these issues ahead of time and put some guidance in the documents can prevent problems in the future.

When parties reach a negotiation impasse, I often hear one party say “Let’s just go to trial and have the Judge decide that.” Unfortunately the parties don’t often realize just how long they will be waiting.

After a trial the judge has up to 90 days (3 months!) to make the decision.  But first you need to get to the trial.  In a divorce case, it may be several months (or over a year) before you even get there.  First you need to work through the court process – attempt mediation, complete evaluations, have a pre-trial, etc. Then you need to have your trial.

Each county handles their trial calendars differently. In the larger metro counties, you may be assigned a certain trial date that is specifically for your case so you know when your trial will be. But most other counties operate with a mass trial calendar. The judge has a certain week or two every couple months for trials. There is a list of trials for that certain week and you are assigned a number. Everyone is supposed to guess how long their trial will last, and try to resolve all issues before trial. The week of trial, the trials will go in order and the judge will hear all that he/she can for the week. Most of the time there are more cases assigned then the judge could possibly get through (because most cases do settle before trial). However, if you are somewhere near the middle or end of the list and there are cases ahead of you that have not settled (or even if you are number 2 or 3, but the cases ahead of you require multi-day trials) you will likely get bumped to the next available trial slot. It has not been unheard of for a case to get bumped a few times, you could be waiting for trial for several months.

The best thing you can ever give someone you love is peace of mind.  Stress and uncertainty can take a toll on all of us, the comfort and reassurance that comes from a loved one’s hug or kind words can go a long way of relieving the burden.

You may have noticed it has been awhile since my last blog post.  Life and a busy law practice sometimes gets in the way of blogging. For those of you who know me, you know that I spent the last part of July in Colorado with my grandparents.  My grandpa was ill and passed away.  I was there in those final days, and I was there to help my grandma with the arrangements that followed.

While ultimately everything went well (and we had a beautiful funeral service - a great tribute to a wonderful man), there are bound to be some bumps during any emotional crisis, and I could not help but feel (yet again) just how important it is to:

*Update Your Will.  Hire an attorney to draft it, and hire an attorney who will really take the time to explain the documents to you.  Make sure your documents are up to date and make sense to you.

The funeral home had requested my grandpa’s will, and we were told the personal representative would need to sign the papers authorizing cremation.  At one point my grandma did not think she was the personal representative.  She and I were going through the estate documents trying to make sense of them.  For a brief period time, things were feeling rather chaotic.

*Discuss Your End of Life Health Care Preferences.  Spending those last few days with my grandpa in hospice was difficult.  We were all prone to second guess the decisions that had been made.  When those feelings of self-doubt started taking over we were able to remind ourselves of those comments that had been made years ago on how he wished to live his life.

While you still can, share your preferences with your loved ones on how you would like to be treated.  What type of pain management would you want?  Would you want a feeding tube?  What quality of life is important to you?  And then get a Health Care Directive - put those preferences in a legal document and/or give someone else the authority to make decisions for you.

*Plan Your Funeral.  I don’t necessarily mean you have to plan every detail, or do an official pre-plan, but at least talk about what type of services you would like your family to have.  While we knew it was coming, and we had slowly started working on it, there was a “Now what?” moment.  How do you even get started planning a funeral?

Are there any special songs, prayers, poems, or Scripture you would like to have included?  A certain place you would like the services held?  A certain person to perform the service or give a eulogy?  Do you want to be buried or cremated?  If you are cremated, what do you want done with your cremains?  Talk to your loved ones about the funeral may be paid for and your expectations. (Let them know when it may be okay to go with the budget model and when you would expect them to splurge a bit).     

As a lawyer, I have to tell you how important it is to have the legal documents.  Your wishes may not be legally enforceable without the proper legal documents, and it truly is important to go through the proper channels to ensure your wishes will be followed.

But as a granddaughter, daughter, sister, wife, and friend, I cannot stress enough the importance of having these conversations, making the plans, and expressing your wishes.  Don’t think that having ‘The Talk’ once is enough.  “Dad told me once that he wanted ___” is totally different than “Dad always told me he wanted ______.”

That feeling of peace of mind your loved ones will have when they KNOW they are making arrangements and decisions according to your wishes is more valuable than anything else you can leave behind.

And if you know of anyone needing hospice care or funeral services in Colorado, I can not say enough good things about HospiceCare of Boulder and Broomfield Counties and Horan & McConaty.  Everyone we worked with was compassionate, caring, knowledgeable, understanding, and professional.  They did their best to make a difficult time a little bit easier.

 My first ever newsletter came out yesterday.  Because I feel the main article contains an important message, I am including it here on the blog.  But don’t miss out on the next newsletter - subscribe today!

How will you Live for Today, Plan for Tomorrow?

“Live as if you were to die tomorrow. Learn as if you were to live forever.” - Mahatma Gandhi

 

In today’s fast-paced society we spend so much time running to and from work, school, soccer practice, music lessons, etc.  We never take a break to catch our breath.  We beat ourselves up over all those things we ‘need’ to do - clean the house, mow the yard, get the groceries… and we yearn for those things we ‘hope’ to do - read a book, take a vacation, start a new hobby…  We rarely find the time for those ‘hope to-do’s;’ we constantly put them off, telling ourselves “I’ll do that when the work is done and the time is right.”

 

And then something happens to make us realize how fragile life is; how unhappy we are running like mad, working non-stop, and never getting to those things we hope to do.  All too often it takes a tragedy, or near-tragedy for this realization to come.For me, this realization came when my grandfather got sick the end of May.  For months I had been telling myself that I would visit my grandparents someday when life calmed down, work was slow, and the money was there.  And then I realized that I ran the risk of someday becoming never, and I knew that I would never forgive myself for that.  So I bought the plane ticket, put the vacation on my calendar, and went to visit my grandparents.  My ‘need’ to-do list could wait, but I was not going to miss this opportunity.

And on my trip I (once again) vowed I would learn to live for today.  I would learn to prioritize, I would take the time to enjoy my life - appreciate the sunshine, spend time with my family, take my dogs for a walk.

Don’t wait for something drastic to change your life.  I want you to Live for Today.  Take a deep breath, smell those roses.  Stop beating yourself up over all those lingering ‘need to-do’s.’  The world won’t end if the housework goes another day (or more), and even if the world does end, would you even care?  Make time for those things that really matter to you - catch up with a friend over a cup of coffee, plan a family picnic, go visit a loved one.  Start getting around to some of those ‘hope to-do’s.’

But while I think it is important to Live for Today, I need to stress just how important it is to Plan for Tomorrow.  We all know that the two inevitable things in life are death and taxes.  There’s no avoiding them.  As difficult as it may be to think about, talk about, and plan for your own death (or the death of a loved one) - it really is necessary.

If you take the time now to plan, your family will know your wishes when the time comes.  Your wishes will be followed.  You will be able to name a guardian for your children, establish a trust and determine who will control the money and when your children will have access to the money.  You will be able to select the person responsible for handling your affairs.  Your estate can save time and money in the probate process.

If you fail to plan, your family will be left to pick up the mess.  Your wishes may not be followed.  Your family could engage in an emotional battle trying to figure out what you may have wanted.  The courts will be involved, making decisions for you.  You will have no say in a potential guardian for your children, how your assets are distributed, who will handle your affairs.  Your estate may end up in a long and expensive supervised probate process.

Plan now, save money later, and provide your family with reassurance and certainty.  Fail to plan now, spend more money later, and leave your family feeling overwhelmed and facing uncertainty.  Ultimately, it is your choice.  But to me the choice is simple.

How to Plan for Tomorrow

• Talk to your family and friends.  Discussing wishes now may prevent disputes in the future.
• Think about your wishes in regards to medical care and get a Health Care Directive.
• Consider purchasing life insurance to provide for your family if you are no longer able to.
• Review the beneficiary designations on bank accounts, investment accounts, and retirement accounts.
• If you have a will, review it and consider updating it.  If you don’t have a will - now is the time!

Because the following could be considered advertising, and I don’t want to mess with the lawyer’s board, please accept the following disclaimer:  *Advertising Material*        

A ‘Live for Today, Plan for Tomorrow’ Special Offer
Because I want EVERYONE to Live for Today, Plan for Tomorrow, I have decided to offer a special discount on my Basic Estate Plan package.  My Basic Estate Plan package includes a will, health care directive, and power of attorney, as well as a copy of my very own Put Your Estate Plan Into Action: An Estate Organizer - everything you need to make things easier on your loved ones when the time comes.  This package is specifically designed for those with simple assets and distributions (i.e. no expected contests, no estate tax liability, no out of state property).  The Basic Estate Plan package normally costs $575 for a married couple with children, $525 for a married couple without children, $375 for a single person with children, and $325 for a single person without children.

The Live for Today, Plan for Tomorrow Special:
The longer you wait, the less you save…

Save $100 on a Basic Estate Plan in the month of July
($475 for a married couple with children, $425 for a married couple without children, $275 for a singe person with children, $225 for a single person without children).

Save $60 on a Basic Estate Plan in the month of August
($515 for a married couple with children, $465 for a married couple without children, $315 for a singe person with children, $265 for a single person without children).

Save $25 on a Basic Estate Plan in the month of September.
($550 for a married couple with children, $500 for a married couple without children, $350 for a singe person with children, $300 for a single person without children).

These special prices will be available to anyone who mentions the Live for Today, Plan for Tomorrow special offer when calling or e-mailing to request information - so spread the news!

These prices will also be used for any Will Parties scheduled for July, August, or September.  Can you think of a better way to spend an evening with friends, save some money, AND get your estate planning taken care of?  Availability for Will Parties will be limited - so schedule yours today!

I am busy preparing the first of what I hope to be a quarterly(ish) newsletter.  I will provide news and information on family law, estate planning, and other Minnesota legal issues, as well as information (and special offers) on my services.

I would hate to spam anyone, so if you are interested in checking out the newsletter, please subscribe (you can unsubscribe at any time, my feelings won’t be hurt).  You won’t want to miss the very first newsletter.

Please click here to subscribe to the Jennifer R. Lewis Kannegieter, Attorney at Law Newsletter

In the divorce world, we get so focused on the children under the age of 18.  Children between the ages of 18 and 21 may get a moment’s notice, but children over the age of 21 are routinely ignored.  Unfortunately, children are always affected by their parents’ divorce: if they are 5, 25, or 55.  Here are a couple tips for adults whose parents are divorcing, and for divorcing parents with adult children:

If You Have Adult Children:

• Let Them Know What Is Going On:  Your children are adults, and as such they are used to dealing with adult topics.  Let your children know what is going on - preferably both parents should break the news, and do it early on.  (There’s an episode of How I Met Your Mother where Ted finds out his parents are divorced (and Mom is in a new relationship), and have been for several months, even though he recently spent the holidays with them - not the way to find out).  Ask your children if they have questions about the divorce, if they want to express their feelings, or if they need support.  Reassure them that your divorce has nothing to do with them, and that each parent will continue to be their for them.

• Keep Them Out Of It:  Even though your children are now adults (see above), and even though you may otherwise consider them friends, your children DO NOT want to be in the middle of your divorce.  Keep all of the details and mudslinging to yourself.  If you need someone to vent to, find a friend or pay a therapist, do not use your children.

• Be An Adult About It: One of the biggest complaints adults have about their divorced/divorcing parents has to do with the immature behavior that often comes out around life’s important milestones (graduations, weddings, birth’s, holidays, etc.).  Yes, there may be tension between you and the ex.  You may not want to see him/her.  There may be a new significant other you do not approve of.  But none of that has to do with your children and grandchildren.  To your children, you and your ex are “Mom” and “Dad.”  To your grandchildren, you and your ex are “Grandma” and “Grandpa.”  It is important to your children and grandchildren to have “Mom,” “Dad,” “Grandma,” and “Grandpa” at that important family event.  Put aside your differences, put a smile on your face, and support your children and grandchildren at those events.  You don’t have to be best friends with your ex, but you also don’t need to be bitter enemies.  If you really can’t stand the thought of facing your ex, then make plans to celebrate with your family at another time and accept the fact your family will celebrate the event with your ex.  But DO NOT start the “You can’t invite HIM!” or “I’m not going if she’s going to be there!” tug of war, your children do not want to be a part of that, nor do they want your grandchildren used as pawns.

If Your Parents Are Divorcing:

• Do Not Feel Guilty - it is a natural inclination to feel like the divorce is your fault.  It is not.

• Communicate - Communication is important.  Do not be afraid to share your feelings with your parents.  Communicate to them when they are overstepping boundaries by dragging you into the middle of it, or when they are acting childish.

• Set Boundaries - Dynamics change and people can go crazy in a divorce. Set boundaries for yourself and your family.  Let Mom and Dad know that you do not want to be involved in their divorce.  Discuss expectations for holidays and other events.  Don’t let them guilt you into traveling and celebrating each holiday with both of them - with spouse’s, children, in-laws, etc. celebrating separately with everyone just may not be possible.  Do not let your parents use you (or your children) as a pawn.  Do not feel bad about your wedding, graduation, baby’s first birthday, etc.  Expect your parents to be adults about the situation.

• Be Accommodating  - While it is important to set boundaries, sometimes it is necessary to be accommodating.  Things will change with the divorce, and there may be an adjustment period.  Just know the difference between accommodating and doormat.

• Seek Support - You are no longer a child, you may even have children of your own, but going through your parents’ divorce can be difficult.  Do not be afraid to seek support if you need it.