At the law firm of Henderson, Howard & Pawluk, we understand that family law disputes can be some of the most emotionally-burdensome issues you may ever have to face. In order to make these matters a little less stressful, we offer personalized service directly from attorneys who have 30+ years of experience in everything from drafting prenuptial agreements to obtaining post-decree modifications. Our attorneys have guided clients through hundreds of divorce cases, from simple uncontested divorces where the spouses agree on each issue in negotiation, to complex, highly-contested cases involving the litigation of financial issues such as property division, spousal support, and child support. We also assist with all issues involving child custody, visitation, and parenting time, including paternity, relative or third-party custody, and grandparents’ rights to visitation. In addition, we can assist with stepparent, relative, and third-party adoptions. In conjunction with our estate planning practice, we also assist in establishing conservatorships and guardianships for minor children, as well as for incapacitated adults.
Q. Does a person have to be legally separated before obtaining a divorce?
A. No, a person does not have to be legally separated before obtaining a divorce. In fact, a legal separation action is a separate legal action, very similar to a divorce action. The only difference is that at the end of the proceeding a person would have a decree of legal separation rather than a decree of divorce. Minnesota law does not require any type of separation prior to starting a divorce action.
Q. Does mediation replace divorce?
A. Mediation does not replace divorce. However, it can be an important part of a divorce proceeding. Mediation is a process in which the two parties meet with a neutral third party mediator, who does not represent either party. The mediator’s job is to assist the parties in reaching agreement on some or all issues in their divorce. Once an agreement is reached in mediation, normally the mediator will put the agreement into a written document, which both parties would then review with their respective attorneys. If both parties go into mediation with an open mind, and understanding that they may have to compromise on certain issues, mediation can be very successful. However, if one or both parties do not intend to compromise, or if the parties go into the proceeding on “uneven ground”, such as where one party has more “power” over the other party, such as where there has been domestic abuse between the parties, mediation will probably be less successful. Even when the parties reach a mediated agreement settling all issues in the divorce, they still need to have that agreement memorialized through the appropriate dissolution documents and submitted to the court.
Q. How does the court decide who is awarded custody of the children?
If the parties cannot agree on who will have custody of the children, the parties may be referred to the county Court Services department, or to an individual evaluator, for custody mediation and/or a custody evaluation. In that case, the evaluator and the court will be evaluating a set of 13 factors to determine what is in the best interests of the minor children. The factors which the court looks at include: The wishes of the parents; the reasonable preference of the child, if the court feels the child is of sufficient age to express a preference; who has been the primary caretaker; the intimacy of the relationship between each parent and the child; the interaction of the child with other family members or persons who may significantly affect the child’s best interests; the child’s adjustment to home, school, and community; the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining the continuity; the permanence, as a family unit, of the existing or proposed custodial home; the mental and physical health of the individuals involved; the capacity and disposition of each party 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; the child’s cultural background; the effect on the child of the actions of an abuser, if domestic abuse has occurred between the parents or between a parent and another individual; and the disposition of each party to encourage and permit frequent and continuing contact by the other parent with the child. Based upon a review of all of these facts, the evaluator will make a recommendation to the judge. The judge, however, makes the final determination after considering these factors and the recommendations of the evaluator.
Q. What is joint custody?
A. First, it is important to understand that there are two kinds of custody — legal custody and physical custody. Legal custody has to do with who makes the major decisions in the children’s lives, normally dealing with health care, education, and religion. Minnesota law presumes that joint legal custody is appropriate, unless there are special circumstances which would dictate a different result. Physical custody is the determination of which party the children will live with. Physical custody can be awarded solely to one party, or can be awarded jointly to both parties. If joint physical custody is awarded, it could mean a 50/50 splitting of time between the parties’ homes, or a more uneven division of time, such as 60% with one party and 40% with the other, or even a division where the children would reside with one party during the school months and the other party during the summer months, with scheduled parenting time with the other party.
Q. Why do I need an attorney to represent me in my divorce action? Can’t I just use a paralegal service?
A. While some cases may be suitable for “do-it-yourself” divorces, there are often issues in a divorce that make it more complex than simply filling in some forms. Often it is very important for the parties to have legal advice regarding issues such as custody, child support, division of assets and debts, etc. There may also be important tax ramifications related to how certain issues are decided. What the parties need to keep in mind is that a paralegal service cannot provide you with any legal advice, they can only provide you with the forms to fill in yourself. Also, it is very important to know that once a divorce decree is entered, it is very difficult, if not impossible, to make any modifications in it. This is particularly true in regard to division of assets and debts. The court will not change the decree later, simply because a party did not understand the impact of what they were signing. Even in those cases when something can be changed or corrected later, it is often more expensive to do so than it would have been to have an attorney representing you in the first place.
Q. How much will a divorce cost me?
A. The cost of a divorce varies greatly, depending upon how the matter proceeds. In other words, the more time that an attorney has to spend on the case, the more it will cost. Thus, the longer the parties choose to argue about the issues, the more it will cost them. An attorney charges the client for whatever time they spend working on the case. Hourly rates do, however, vary, based primarily on the attorney’s experience. The amount of time that an attorney needs to spend on a case also depends upon the issues in the case, and can even depend upon who the other attorney and/or judge are! A very simple divorce with no children and no property might cost as little as $1,200.00, up to a complicated divorce that goes to trial, costing tens of thousands of dollars. Thus, it is very difficult for an attorney to provide a client with an estimate of what the proceeding will cost, at the beginning of the case, at least until the issues and parties’ respective positions are known.