Fill and Sign the Minnesota Steps Divorce Form

STEPS IN THE DIVORCE PROCESS (MARRIAGE DISSOLUTION IN MOST MINNESOTA COUNTIES) INTRODUCTION The process of obtaining a divorce (marriage dissolution) involves a number of steps that are unfamiliar to most people. This memo is an attempt to provide you with some information about the most common steps in the dissolution process. If the terms used in this memo are unfamiliar, you may find the attached Glossary of Terms helpful. No single memo can address all of the questions and concerns that you may have; therefore, it is important to consult your attorney or legal assistant to obtain further information about the contents of this memo or to answer any questions you have about your dissolution action. The Client Information Form . In order to properly prepare the documents needed in a dissolution action, it is absolutely necessary that we have as much accurate information regarding your family status, your assets and your debts as possible. In order to obtain this information, we have given you an information form and ask that you fill it out as fully as possible. It is very important that you provide us with copies of any documents you have that report income, assets or debts. A list of the type of documents we will need is attached as the last page of the Client Information Form. This information will make it easier for us to help you through this difficult period and minimize the time it will take us to prepare the required pleadings. The legal documents prepared in connection with an action for dissolution of marriage are called pleadings. COMMENCING THE ACTION Summons and Petition . A legal action for dissolution of marriage is started by personally serving one spouse with legal documents called a Summons and Petition. If you are the person commencing the dissolution, we will prepare a Summons and Petition which informs your spouse that you have begun a dissolution action. The Petition also informs your spouse that you will ask the Court to award you certain things such as custody of children, maintenance, and a share of the property acquired during the marriage. The Summons and Petition must be delivered to your spouse by a person other than you. Usually, this is done by a process server. This form of delivery is known as personal service. The Summons and Petition cannot be mailed to your spouse. In some instances, if your spouse has retained an attorney, that attorney will accept service for your spouse. In that case, the Summons and Petition can be delivered or mailed to the attorney. When the Summons and Petition have been served on your spouse, either personally or through your spouse's attorney, the action for dissolution of marriage has begun. Answer and Counter-Petition . If your spouse initiated the proceeding, the Summons and Petition may have already been served upon you. In the Summons and Petition and all subsequent documents pertaining to your dissolution, the person who has begun the proceeding is referred to as the "petitioner" and the spouse on whom the Summons and Petition is served is referred to as the "respondent." Once these pleadings have been personally served, the respondent has 30 days in which to prepare and serve on the petitioner's attorney an Answer, which admits or denies the statements contained in the Petition. The respondent's attorney may ask for an indefinite stay on the Answer if it looks like the case will be settled. The respondent's attorney may prepare and serve a Counter-petition, which sets forth the respondent's position on the issues. TEMPORARY RELIEF An Application for Temporary Relief . In a case where there is a need for immediate relief, that is, where some matters must be decided at once, pleadings called a Notice of Motion and Motion, Application for Temporary Relief, and, possibly, supporting Affidavits are prepared and served. The purpose of these documents is to provide the Court with the information necessary to make a temporary decision about issues such as temporary child custody, who will live in the homestead, whether one spouse must pay the other spouse temporary maintenance, whether one spouse must contribute to the other spouse's attorney fees and possibly the division of some personal property. Stipulation for Temporary Relief . It is possible for the parties to agree on matters such as those mentioned above and write their agreement out in a document called a Stipulation. The stipulation is presented to the Court and the judge or referee issues an Order for Temporary Relief - 2 - that incorporates the parties' agreement into the order. If the parties do not agree on one or more issues that must be decided on a temporary basis, the pleadings are filed with the Court, served on the opposing party and they proceed to a hearing. Deadlines for Filing Motions . Court Rules require that all motions and companion documents, including motions for temporary relief, be served on the opposing party and filed with the Court at least 14 days, not including the day of service and filing, prior to the hearing of the matter by the Court. In many counties the Court calendars are sufficiently crowded that a hearing must be scheduled several weeks in advance. However, it is important to keep in mind that hearings cannot be scheduled sooner than 14 (actually 15) days following service of the Notice of Motion and Motion on the other party. If the opposing party wishes to raise issues for the Court to consider at the hearing or if the opposing party merely wishes to respond to the issues raised by the party who brought the motion, the opposing party must meet strict deadlines set by Court Rules for serving and filing pleadings. Hearing for Temporary Relief . At the hearing, called a Hearing for Temporary Relief, both parties are present in Court with their attorneys. The hearing is conducted by a judge or a referee and the proceedings are recorded by a court reporter. The parties usually do not speak during the hearing. The attorney for the party bringing the motion begins by making an argument to support the position that the Court should grant his or her client what was asked for in the client's motion. Next, the attorney for the other party has an opportunity to argue his or her client's position. Each attorney is usually given a chance to respond to the other attorney's argument. No oral testimony is taken from either party or from any witnesses. This is the procedure that is followed at all motion hearings. Order for Temporary Relief . After hearing the arguments of the attorneys and reading the pleadings submitted by each party, the judge or referee will make a decision about the matters raised by the parties and issue what is called an Order for Temporary Relief. This Order will set out the Court's decision about such matters as temporary possession of the homestead, temporary custody of the children, temporary support and spousal maintenance, and temporary attorney fees or - 3 - such other matters as the parties raised in their motions. Remember, a "Temporary Order" is just that; it does not prejudice either party as to any final disposition of the matters. Importance of a Court Order . An Order for Temporary Relief is a Court order. It is imperative that you strictly comply with all provisions of this and all other Court orders issued while your dissolution is pending. Willful violation of a Court order may subject you to a citation for contempt of Court or, depending upon the provisions violated, to a misdemeanor charge, both of which carry the possibility of incarceration. DISCOVERY After the Order for Temporary Relief has been secured, a period of time is required to complete the "discovery" stage of the proceeding. The purpose of discovery is to allow both parties to investigate the facts necessary to properly try or settle a lawsuit. This includes gathering information and documentation about assets and their value, about debts and information about the other party's position regarding matters such as maintenance and custody. If child custody is at issue, see a separate memo on Child Custody. Interrogatories . The most common discovery practice is for each party to serve the other with Interrogatories. Interrogatories are written questions submitted to the opposing party which must be answered, in writing, under oath. Your attorney helps you to draft the final form of the answers. It is important that the answering client provide the attorney with all the required information so that complete, responsive Answers can be drafted. Requests for Production of Documents . Another common discovery device is the Request for Production of Documents. Each party may demand, in writing, that the other produce documents such as tax returns, business records or checking account records and allow the attorney for the requesting party to photocopy them. This is a necessary and helpful procedure. It allows each party to verify information about assets and claims. Once information is verified with documentation, it is often possible to begin settlement discussions. Therefore, both parties' full cooperation in gathering documents will help move the dissolution process along and decrease the - 4 - expense involved. Depositions . Another common discovery device is the taking of "Depositions." A deposition is basically a question and answer session in which one spouse's attorney can question the other spouse, or possibly witnesses, under oath. The deposition usually takes place at the office of the attorney who will take the deposition. All of the questions asked and the answers given are recorded by a Court Reporter and may be transcribed into a written document if necessary. If it is necessary for you to appear at a deposition, you will be fully briefed beforehand. Length of Discovery . The nature and extent of discovery will depend largely upon the complexity of a party's or the family's financial holdings and whether or not the question of custody of minor children is to be litigated. Motion of Compel Discovery . Failure of a party to cooperate in discovery may result in a "Motion to Compel" brought by the opposing party. The result of such a motion is normally a Court order requiring cooperation and, frequently, an order requiring the offending party to bear the attorney's costs for the motion. Working with Others . During discovery, as throughout the proceeding, several people from this office may be working on your file. They may be legal assistants, law clerks, accountants, investigators, or other professionals. It is important to be as candid with each of these people as you would be with an attorney. They are professionals, trained in their respective fields, and fully competent to perform the functions assigned to them. Your communications are protected by the attorney-client privilege and your full cooperation with them will facilitate our work for you. SETTLEMENT NEGOTIATIONS During the discovery period, settlement negotiations may take place. These may be informal negotiations between the attorneys or, in some counties, the Court may require the parties and their attorneys to participate in formal settlement negotiations at the courthouse or in some other setting. Any settlement offers received will be forwarded to you and discussed with you. Any settlement offers to be made will be thoroughly reviewed and approved by you before being - 5 - sent to the opposing attorney. It is the attorney's role to advise the client of the reasonableness of the offer, but it is the client who makes the final decision about whether or not an offer will be made or whether or not an offer will be accepted. PREHEARING CONFERENCES If no settlement is reached either through informal negotiations or at a formal settlement conference, the Court, in most jurisdictions, will order a prehearing conference. The prehearing conference takes place at the courthouse and both parties and their attorneys are required to be present. A judge is available to talk to the attorneys and sometimes to the parties about the possibility of settling some or all of the outstanding issues. If no settlement can be reached, the judge will help the attorney isolate the issues which will be tried and will establish the estimated length of trial (also called a final hearing). Even after the prehearing conference, however, the parties' efforts to reach a settlement will normally continue up to the time of the final hearing. DEFAULT HEARING/ADMINISTRATIVE REVIEW Default Hearing . If a settlement is reached prior to trial, but there has not been time between reaching a settlement and going to trial for the parties to reduce their settlement to writing, one party will appear at a default hearing. A default hearing is a simple Court appearance during which one party, usually the petitioner, appears with his or her attorney and asks the Court to accept the parties' agreement. There are a number of formalities that must be observed during the hearing but the entire matter takes only a few minutes. In some counties, if there are children involved, a default hearing will be required even though the parties have reached agreement on all matters, including matters pertaining to the children, and have reduced their agreement to a formal written document called a Marital Termination Agreement. Following the hearing, the Court will ask the attorney to prepare a draft of the Judgment and Decree. The draft is usually sent to the other attorney to examine before it is submitted to the Court. Once the draft of the Judgment and Decree is submitted to the Court, the Judge signs it, it is entered on the Judgment rolls by the Court - 6 - Administrator, the attorneys for the parties are notified the Judgment has been entered and the parties' divorce is final.. Administrative Review . In many counties, if the parties have reached an agreement on all matters and prepared and signed a Marital Termination Agreement, no Court appearance by either party is required. The Marital Termination Agreement, signed by the parties and their attorneys, along with a draft of the final Judgment and Decree, is mailed to the Court. The Court Administrator reviews the documents and, if they are in order, they are given to the judge who signs the Judgment and Decree and returns it to the Court Administrator who enters the Judgment and Decree on the Judgment rolls and notifies the attorneys for the parties that the Judgment and Decree has been entered. THE FINAL HEARING If one or more issues cannot be settled, an evidentiary hearing called the final hearing or the trial will be held. The attorneys present documents called exhibits to the Court to support each party's position on each outstanding issue. The parties and possibly other witnesses are called to give testimony under oath about the facts as they see them. It is very unusual for the judge to make a decision about any of the matters presented as soon as the final hearing is concluded. It is much more common for the judge to take the matter under advisement which means that the judge will decide the issues at a later date. The judge may take as long as ninety (90) days to make a decision and issue the final Judgment and Decree. POST-DECREE MATTERS After a final Decree is entered by the Court, your attorney will be available to assist in finalizing its terms. This may require drafting deeds or other conveyances of property and other similar tasks. If a party is unhappy with the Court's determination, the process and likelihood of success of post-trial motions and appeal will be discussed at this time. - 7 - CONCLUSION The discussion above is a simplistic description of the basic system and how it is intended to work. Procedures for appointment of guardians of children, counseling, wage assignments, retention of expert witnesses and other procedures will be thoroughly explained as the need arises. It is important to bear in mind that all dissolution proceedings are different. The factors giving rise to a result in one case will vary or be entirely absent in another. The law in dissolution proceedings is, of necessity, very flexible and individual judges are given broad discretion in making decisions. Factors such as the resistance or cooperation of your spouse and his or her attorney, the complexity of the legal principles involved in your case and the facts of your individual situation make it extremely difficult to estimate the cost of attorney's fees in dissolution proceedings. Certain expenses such as filing fees, service fees and deposition costs are usually required in all cases. The number and length of depositions (where a Court Reporter takes down one's testimony) may also depend on the factors listed above. If appellate work is necessary, your attorney will discuss certain required expenses such as cost bonds and trial transcript fees. - 8 -