MINNESOTA FAMILY LAW FAQ’S
If you have any questions about the legal issues facing you, we are pleased to offer several informational resources for your knowledge and convenience. We invite you to review our video blogs, which cover some family law case topics, as well as personal injury topics. If you have any additional questions or would like to have a consultation with us, please email or call us.
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DIVORCE AND FAMILY LAW
Our divorce and family law attorneys are known throughout Minnesota, and beyond in some cases, as some of the most respected and experienced lawyers in the state. We represent family law clients from all walks of life, whether involving a headline case or simply offering advice and connecting a family with the right resources, we know family law and we do it well.
McCullough & Associates, P.A. has experienced and well-recognized family law attorneys representing clients in divorce (dissolution), custody, child support, alimony (spousal maintenance), paternity, third party child custody, interstate and international child custody, and property divisions throughout the state of Minnesota. Following are answers to some of the questions that we frequently encounter when a client is deciding to hire a divorce or family law attorney.
In most cases, that attorney becomes your attorney of record, and is able to file and serve legal documents on your behalf, and to receive documents on your behalf. The specific steps taken by the attorneys at McCullough & Associates, P.A. vary based upon the facts and circumstances of the case, and will be determined in consultation with the client.
If McCullough Associates, P.A. initiates the divorce on your behalf, we will draft the divorce petition and arrange to serve it on the other party. Serving the other party with the divorce petition does not need to involve a third party delivering the papers to the other party if the other party is willing to acknowledge receipt of the papers by signing an “Admission of Service.”
On the other hand, if a McCullough & Associates, P.A. attorney responds to the other party’s divorce petition, we will analyze the allegations that have been made and assist you in exercising your legal right to provide for your best interests and the best interests of your family.
If all issues are undisputed, a McCullough & Associates, P.A. divorce and family law attorney can complete the divorce in as little as a few weeks. If there are disputes that need to be mediated in court, the divorce can take months. On average, a divorce that requires a court trial takes twelve to eighteen months, or longer. Your divorce may take a longer time, or a shorter time, depending on the specific circumstances of your case.
The parties are entitled to the same results in court, and are subjected to the same obligations to receive those results, whether they are the party initiating the divorce (Petitioner) or responding in the divorce proceeding (Respondent). It may, however, be an important consideration relating to who initiates the divorce as it pertains to the “venue,” or county, in which the divorce is commenced.
Previously, the parent with physical custody (obligee) received child support from the other parent (obligor) based upon guidelines set forth in Minnesota law that considered the obligor’s income only. The court could set child support in accord with the guidelines, or exercise discretion to deviate upwards or downwards from the guidelines. The Minnesota legislature passed a law effective January 1, 2007 for cases filed after that date which now takes both parents’ incomes into consideration in all cases.
There are no guidelines for alimony, the legal term of which is spousal maintenance. Many divorce cases involve no alimony, in which neither party pays alimony and neither party receives it. If there is a substantial income disparity between the parties, and the parties have been married a long time, there is greater likelihood of alimony. You must discuss the specific facts and circumstances of your case with your attorney to rule in, or rule out, the possibility of alimony.
Although the Minnesota Supreme Court advisory task force has provided a general set of recommendations, there are no specific guidelines in Minnesota law for child visitation with a non-custodial parent; but there is a presumption of 25% parenting time. In many cases, the parents are able to agree on a parenting schedule that is suitable for the children. If the court is presented with a dispute, the court will often obtain guidance from a neutral professional, such as a custody evaluator or a guardian ad litem, to determine what is in the children’s best interests.
Divorce mediation is a process of resolving the issues in a divorce case by agreement of the parties, instead of by the decision of the court after a trial. After it is determined that there are disputed issues, and before the disputed issues are litigated in court, the issues are presented to a mediator, who is a neutral professional who has no authority to render a decision on the disputed issues. The mediator assists the parties in finding common ground, reasonable concessions, or creative solutions to facilitate the parties’ agreed resolution of the disputed issue(s). The divorce and family law attorneys of McCullough & Associates, P.A. represent clients who are engaged in the mediation process, and advise them as they move forward in the mediation process. In addition, D. Patrick McCullough serves as mediator in divorce cases, and has established a reputation as one of the most highly respected divorce mediators in Minnesota.
In practice, however, most parties in Minnesota use one of two main, well-established processes: mediation and early neutral evaluation.
Social Early Neutral Evaluation (SENE) is another option for parents to use when they are not in agreement on issues relating to their children. In this process, the parties sit down with two evaluators, one male and one female, and discuss their concerns and thoughts regarding custody and/or parenting time issues. The evaluators generally begin by having the petitioner (the person who started the case) discuss their thoughts on the children, how the parties have parented, and what they believe would be the best custody and parenting arrangement. After the petitioner has spoken, the respondent is then allowed to give their thoughts on the same topics. Both parties are in the room when the evaluators hear from each parent, and both are instructed not to interrupt or interject but rather listen, take notes, and they will be given an opportunity to respond to the other parent’s comments. Duringthe conversation the evaluators often will ask questions, gather information, and try ensure that each party has had an equal chance to be heard, as it is important for each party to feel that it has been a fair process. After the allotted period of time, the evaluators leave to discuss the issues and return with a recommendation, which they present to the parties.
Financial Early Neutral Evaluation (FENE) deals with financial issues such as property division, the characterization of property as marital or non-marital and spousal maintenance. Typically, there is only one evaluator in this process and the discussion tends to mirror mediation with the evaluator giving their opinions as to how they believe a court would likely rule in a particular situation after the evaluator has gathered the information he or she needs to make an informed recommendation regarding what he or she believes a court may do in a similar situation. The recommendation is then used to focus the parties’ negotiations and to help them in structuring an agreement that is acceptable to both parties.
Divorce attorneys are not permitted to work on a contingency basis (where the attorney receives a share of the total award). Attorney’s fees in divorce cases are almost always on an hourly basis. Therefore, the client can expect to pay higher fees for cases that require a great deal of time, and lower fees for cases that resolve relatively quickly. Whether the case requires more than the retainer fee, and how much more, depends on many different circumstances; some of which you and your attorney can control, and many of which you cannot. Typically, the client will pay a retainer fee to begin the case. The amount of which depends on the specific facts and complexities of the case. At McCullough & Associates, P.A., if at the end of the case the entire retainer fee has not been utilized, the remainder is refunded to the client.
Interstate divorce, child custody and child support cases involve several bodies of law that deal with the court’s jurisdiction to hear cases that involve parties who reside in more than one state. McCullough & Associates, P.A. has significant experience in advising clients on the best way to proceed with these kinds of cases.
It is important for clients who are parties to a divorce or child custody case involving more than one nation to be properly advised about the court’s jurisdiction under these circumstances. These cases involve court hearings, but often also involve contacts with embassies, peace officers, the National Center for Missing and Exploited Children and the Department of State. McCullough & Associates, P.A. provides strong representation in such cases, based upon expertise on jurisdictional issues, and experience with court proceedings, including those under the Hague Convention, to prevent losing custody of, or access to, your children.