Divorce OptionS
As the chart that follows illustrates, when you face separation and divorce, you have many options as to the ways to go through this process.
You can use any of the following options to reach agreement and/or resolution:
Kitchen Table
The "kitchen table" approach, while not an actual legal procedure, is a process used by some couples with relatively uncomplicated circumstances. In this model, you and your partner sit down and work out an agreement regarding all legal issues.
Click here to obtain a list of typical legal issues to be resolved. Once this is accomplished, your agreements must be written up into divorce documents. You can do this in on of two ways:
You and your partner can create your own written summary of your agreements, and bring it to an attorney to draft legal documents incorporating those agreements. Attorneys may only represent one party in a divorce action. Thus, one of you will hire a drafting attorney and the other may want to hire their owns attorney to review the documents. if you have children, and one of you does not hire an attorney, you will be required to go to a short court hearing to finalize your divorce. If you both retain attorneys, they may mail the final, signed documents to the court; no court hearing will be required.
OR
You can complete on-line forms found on the Minnesota Courts website at
www.mncourts.gov and submit these forms on your own to the court. if you are a couple with real estate interests, retirement accounts, investment accounts or debt, you may find that the on-line forms are not adequate to address your individual concerns. Also, without the benefit of legal advice, you may overlook issues that should be considered or handled in your divorce decree, or make mistakes. If you have minor children, and one or both of you are not represented by legal counsel, you will be required to attend a short court hearing before your agreement can be approved by the court. If you have no children, you may simply mail the completed documents into the court for finalization.
Unlike some other divorce options, this method of reaching agreements can produce inexpensive, quick, private agreements. However, if communication with your partner becomes difficult or your situation involves some complexity, you are encouraged to seek professional advice.
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Mediation
Mediation is a process where you and your partner use a neutral facilitator to reach agreement on all issues involved in your case.
Mediators assist couples with achieving a voluntary, non-coerced agreement. A mediator will help you and your partner identify issues that must be resolved and documents that must be gathered. The mediator will then assist you with identifying options for settlement, assessing the pros and cons of each option, and choosing the option that is best for you both. Mediators cannot give legal advice and do not represent the interests of either partner. You and your partner may each retain an attorney if you so choose, to assist you with analyzing your case and to provide you with legal advice and support. You may consult with your attorney outside the mediation sessions, and you may also have your attorney attend mediation sessions with you. You and your partner may also retain neutral experts to assist with various aspects of your case. Commonly used neutral experts include appraisers, mortgage brokers, actuaries (to value pension plans) and business valuation experts.
While your Mediator will prepare a Memorandum of Agreement setting forth any agreements reached during mediation, Mediators may not draft the legal documents which must be submitted to the court to finalize your case. Couples can prepare these legal documents themselves (see "Kitchen Table" above), or your attorneys, if you retain them, will prepare these documents an finalize the divorce.
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Cooperative Practice
Another concept that has recently emerged in Minnesota is Cooperative Practice. Cooperative Practice often begins with the signing of a participation agreement by both parties and their lawyers, which sets out the terms for cooperation, including: negotiating in good faith, acting respectfully towards one another, disclosing all relevant information, using jointly retained neutral experts, protecting confidentiality of communications and refraining from use of formal discovery and contested litigation while negotiating. Cooperative negotiations are generally conducted in four-way meetings between the parties and their lawyers, although negotiations may also be conducted between the lawyers only, or between the parties only. If a dispute cannot be resolved through negotiation, the participants will try to narrow issues for resolution in the courts in as efficient manner as possible.
In Cooperative Practice, as with traditional negotiation, there is no commitment by the attorney to withdraw if the matter cannot be resolved out of court. Consequently, Cooperative Practice is sometimes defined as being like Collaborative Practice without the commitment of the the professionals to withdraw if the matter proceeds to court. It is the view of many Collaborative professionals however, that the agreement of Collaborative professionals to withdraw if the case is not settled, fundamentally changes the nature of negotiations during the process, removing all threat of court and thereby freeing parties to generate and assess options for resolution with complete candor.
Collaborative Practice
Collaborative Practice is a settlement process for participants who seek to negotiate a resolution of their matter with no court involvement. Each participant has an attorney to serve as an advocate, counselor and negotiation specialist. Participants also have access to the following Collaborative neutral experts to help them reach agreement: financial professionals, child specialists, neutral facilitator and coaches, coaches, and mediators.
The distinctive feature of Collaborative Practice is that Collaborative professionals are retained for settlement purposes only. The Collaborative attorneys will not represent a particiapnt in court at any time during a case or subsequent to the case, nor will other Collaborative professionals testify in court at any time. This enables the participants and professionals to focus solely on creative ideas for settling all matters.
A Collaborative case starts with the signing of a Collaborative Participation Agreement, or contract, setting forth the process to be used, including: negotiating in good faith; disclosing all information necessary to make informed decisions; retaining neutral experts jointly, if experts are needed; maintaining confidentiality of communications that occur during the process; and requiring Collaborative professionals to withdraw from the case if it does not settle in the process.
Negotiations most often take place in joint meeting involving the clients and some combination of Collaborative professionals who have been retained. Clients retain control of the process and therefore plan with the professionals who have been retained. Clients retain control of the process and therefore plan with the professianls the issues to eb addressed at meetings. Consdierations in planning meetings inlcude readiness to move forward and emotional needs, as well as substantive matters. An agenda of issues is prepared in advance of a joint meeting so as to avoid surprise, and to address issues in a way that will maximize success.
The ability of Collaborative professionals to work together is important to the successful use of the process. Collaborative professionals are trained in the Collaborative Practice process, including how to work together as a team, as well as substantive areas of their expertise. Most Collaborative professionals have also received meditation training and many have substantial mediation experience.
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Traditional Court process - settlement
You may commence your case in the tradtional court process. Court processes vary fairly significantly from county to county. Thus, it is important to learn about the court process in your county from an attorney who practices there. In Hennepin and Ramsey counties, and to some extent in Anoka and Dakota counties, the process starts with an Initial Case Management Conference attended by both partners, their attorneys and the Judge assigned to the case. The Judge explains the "early case management system" designed to encourage settlement, efficiency and cost reduction. Your attorneys work with you and the Judge to identify a dispute resolution process to assist you with settling your case without a court trial.
Often settlement processes called "early neutral evaluations" are used. Early neutral evaluators attempt to faciliate a settlement of partenting of financial issues at meetings involving both parties and their lawyers, and if settlement is not reached they give an evaluative opinion as to how a case would be decided if it went to trial. The evaluative feedback is then used to again assist parties in reaching a settlement. To reduce costs and acrimony, formal discovery and motions before the court are generally not permitted until after settlement is explored through the early neutral evaluation process. If the process is not successful, either or both partners may then bring motions for relief to the court, serve interrogatories and requests for production of documents, and ultimately schedule a trial.
litigation
Litigation provides resolution for people who cannot find another way to settle their differences. Cases in which one partner is hiding or not disclosing income or assets, or in which one or both partners are not acting in good faith, may be best handled in litigation. In comparision to other divorce options, litigation is often the most expensive option, gives couples the least control over the outcome, and often takes a very long time to complete. Your attorneys will spend a great deal of time gathering together evidence that will be admissible in court, building a case they believe will be persuasive to a Judge and preparing you for trial. They may serve interrogatories and requests for production of documents, or take depositions in preparation for trial. They also may bring motions for temporary relief to obtain interim support, temporary parenting time, or exclusive use of the home during the divorce proceeding. Decisions regarding your children and financial future are made by a judge who generally will have spent only a limited amount of time on your case, and who will not have met your children.
Unfortunately, litigation is often destructive to relationships. Both the process of preparing for trial and the trial itself is costly in terms of the drain on one's emotions, negative impact on relationships including on those involving children, and finances. Litigation should be used only as a last resort.
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