So you thought long and hard, and you have come to the decision that you want to divorce. Now what? Unless you have been through the process before, or are an attorney yourself, the odds are good that you don’t know what to expect. Divorce can be stressful and scary, but it does not need to be a mystery as well.
If you are instigating the divorce, you will start by serving your spouse with two documents – the summons and complaint – which your lawyer will prepare. Both of these documents can be intimidating and may contain a significant amount of legal jargon. The summons is essentially a piece of paper that tells the recipient they are a party to a lawsuit. It spells out how many days they have to respond to the complaint and informs them of certain legal rights. The complaint, in short, is a request to the court for a divorce along with a wish list for asset division, child custody, and parenting time.
If you have received a summons and complaint, you might have noticed that the wish list for asset division seems very one-sided in favor of the other party. You may be a little bit shocked and hurt. After all, you thought your spouse was reasonable even if they didn’t want to remain married. Keep in mind that this document serves a few purposes: it may be used as a starting point for negotiations, it serves to spell out precisely what the filing party will receive in the event you do not respond (also known as default), and in some cases it is a way of venting frustration. You should not necessarily assume that your spouse actually expects or intends to acquire everything listed in the complaint.
In the state of Minnesota, the divorce proceeding begins immediately upon service of these documents. Eventually, they will need to be filed, along with an affidavit of service, with the county court where the party served resides. However, once that happens the court will instigate a rigid timeline for proceeding through the case. Your attorney may, and commonly will, elect to proceed without filing with the county immediately. This way, he may negotiate with the other attorney and conduct informal discovery (which we will discuss later) in an efficient manner without court oversight.This can save the clients money, and can help the case proceed more quickly.
After the party served has responded to the complaint, the parties may begin negotiating a settlement. To properly craft settlement offers, your attorney needs to engage in a process known as discovery. Discovery is a legal term used for the collection of evidence. In a divorce, this most commonly includes financial information, physical asset information, and information regarding child rearing, but may also include medical and psychological information in certain circumstances. If the divorce has been filed with the county, there will be a set timeline by which discovery must be completed. If not, this will be a fluid process that can range anywhere from a few weeks to months depending on the complexity of the family’s assets and other questions involved in the case.
If the divorce has been filed with the county court, your attorney may engage in something called motion practice. A motion is essentially a request to the court to make the court or the other party do something. Sometimes motions are used to make the other side comply with discovery requests. Other examples of uses of motions include (but are not limited to): requesting need-based attorneys fees, requesting a change in venue (moving the case from one court to another one), and requesting that the court levy sanctions for poor behavior against the opposing party.
If the divorce has not been filed with the court, most cases will proceed directly to negotiation after some brief discovery. Your attorney will discuss with you what you are willing to give up and what items you are not willing to negotiate on in your divorce settlement. Hopefully, these negotiations can end quickly and the parties will arrive a resolution. If they do, you can skip to the final step. If, however, the parties are unable to reach a resolution, it may be necessary to reach out to a mediator.
If the parties cannot reach a settlement on their own, the skills of a mediator may be required. Even if the case has been filed with the court, the judge may require the parties to go through mediation before allowing any kind of trial. Mediators have their own personal styles and ways of working, but they all have the same goal – to broker agreement between the parties. Some mediators will start with both parties in the same room while others will start with the parties separated. Some mediators may keep the parties separated for the entire mediation. While you are in private talks with the mediator, you may specify certain information that the mediator must keep confidential. The mediator will also help you to create an offer that is more likely to gain acceptance from the other side. At the end of the day, the mediator’s goal is to ensure a settlement and prevent the necessity of trial.
If the parties are entirely unable to come reach an agreement, whether on their own or with a mediator, the case may proceed to trial. Each side will present evidence to the judge supporting their requests. The setting is incredibly formal compared to the relaxed procedures of mediation, and you and your attorney will have to abide by very strict rules. When it comes to trial, the outcome is a little bit of a die roll. While the majority of law is based on statute and precedent, a great deal of family law is fluid and gives wide discretion to the judge. It is for this very reason that most cases will settle before going to trial – an unpredictable result is rarely preferred over a brokered agreement.
If you manage to come to an agreement in steps three, four, or five, one of the attorneys involved will draft a proposed order for the judge to sign and submit that to the court. Barring exceptional circumstances, the judge will sign this document and your divorce will be final as of the date of her signature. If the parties did not negotiate an agreement, the judge will draft this document following the trial phase. In that event, neither attorney will have any say in the wording of the divorce decree, but it will maintain the same level of finality.
When you have the signed order, you are officially divorced, but you are not quite done. There may be a few administrative steps to take to clean up asset division as stated in the order. You may need to have a quit claim deed drafted so that one party may take full control of the home, or you might need to contact financial institutions to authorize splitting certain accounts. Whatever steps need to be taken, your attorney will be prepared to help you through the process.
At Toepfer at Law, you will be kept informed throughout the process. If at any time you feel lost, confused, or uncertain about where your case stands, you are encouraged to contact us. Anthony Toepfer is an experienced attorney, and is prepared to make the process as smooth for you as possible. His negotiation skill and experience will help you remain out of the court room and keep the outcome of your case in your control. If you are contemplating divorce, or have other questions not addressed in this or other articles, please call (320) 497-4416, use the “For More Information” form on this web page, or e-mail firstname.lastname@example.org to schedule an appointment for a consultation.
Attorney Anthony (Tony) Toepfer began his legal career in the area of business and technology law. While successful in that field, he felt there was something missing. He turned down opportunities, because, as he says, “I wanted to see the faces of the people I was helping.” He transitioned into family law practice, and found what he was looking for.Read More About Tony