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Using Temporary Relief Motions in Divorce in Minnesota

GHL Law Firm — Mon, 21 Jun 2010 21:27:51 +0000

Often in divorces, the parties are not on an equal playing field to start. When there are children involved, one party is usually the primary caretaker and is footing the bill for caring for the children without the help of the parent that may have moved out of the home. Or there may be a situation where one party was the breadwinner and supported the other spouse, and now isn’t providing the support that the spouse needs to survive. Another situation is where one party does not have the resources to pay for an attorney, which is necessary to continue in the divorce proceedings.
When situations like this arise, generally there is a hearing for temporary relief early on in the case. Temporary relief allows the parties to go to court and ask for support prior to the final resolution of the case. This allows the party in the lower financial position to be on a level playing field and not feel desperate to settle and reach a final resolution which may be detrimental to their overall position.
Another purpose of temporary relief hearings is if the parties are not able to come to an agreement on how parenting time and custody should be, but are not ready to finalize all of the details of the divorce. The judge is able to listen to both parties’ positions and make a decision that will give the children the most stability they can have while the parents are going through the remainder of the divorce process.
While temporary relief hearings are a useful tool to have in many situations, not all judges like to hear them. It may be more beneficial if the parties are able to cooperate at all to attend mediation and see if they can resolve the disputes outside of court. This gives the parties some power in shaping their future, and it is generally less contentious; with temporary relief hearings, both parties submit materials to the court that are often hurtful to the other party. The affidavits that each party write generally contain information that does not need to be said if the mediation process is used.

Can’t the court make my spouse pay my attorney fees in a Minnesota divorce?

GHL Law Firm — Mon, 08 Feb 2010 16:09:38 +0000

Almost always in a divorce, one party is in a better financial position than the other. This could be due to one being a stay-at-home parent or homemaker, one party having more education than the other and higher earning capacity, or one party having a more lucrative career than the other. Regardless of the basis for it, a question that is often asked by the lower- or non-earning spouse is “can’t the court make my ex pay my attorney fees?”

During the divorce process, attorney fees are generated by everything the attorney does for you, including preparation for court or mediation and general counseling of the client. There is no guarantee that the court will require one party to pay the attorney fees of the other. However, depending on the discrepancy in income levels and the access each party has to marital assets, it is possible that fees will be ordered. Minnesota statutes do state that if an award of fees is necessary for a party to carry on the proceedings, fees should be awarded. This does not allow a party to continue to bring the other spouse back in court for unnecessary hearings though. The court generally will look at one spouse’s need for payment and the other spouse’s ability to pay.

Most divorce cases settle outside of court. When this is done, attorney fees may be negotiated between the parties. Most often, the party with lesser means will pay their attorney fees and other debts out of the property settlement. They may receive more assets or liquid funds to be able to do this. Each settlement is unique. Generally, however, both parties will need some payment to get an attorney involved in the proceedings.

Effect of the Economy on Divorce Rates

Amanda Maenner — Thu, 27 Aug 2009 16:39:00 +0000

The recent downturn in the economy has affected the amount of divorces over the past year. Our office has seen two trends:

1) Some couples are waiting to file for divorce until the market rebounds. They are concerned in the lowered value of assets such as the marital home and retirement savings accounts, and want to hold off on filing for divorce until they will be able to get some value out of the property division. Also, they may not be in a position to support two separate households and are stuck living together one way or another. There is an interesting article on this phenomenon here.

2) Many couples are trying to negotiate the terms of their divorce settlement on their own, and writing up their own stipulations for the court. They are cutting costs where possible, and saving themselves the cost of hiring an attorney upfront through negotiating on their own.

The second trend may be dangerous, and in many cases it may end up costing you more money in the end. Even if both parties intend for an agreement to mean one thing, if the language is not written properly, the court will interpret the agreement to mean what it actually says. Our office, and that of other family law attorneys in the area, is seeing an increase now in the number of clients that are seeking to modify the agreement that they entered into without counsel. The clients either intended to have some rights reserved in the agreement, or they were supposed to receive something that they have not. The agreement often is written in a way that does not give the client clear recourse in the legal system. When that happens, the client ends up paying much more in legal costs to fix the problem than they would have to avoid the problem to begin with.

There are ways to keep costs low while still using an attorney. For example, a lawyer may be retained for the limited purpose of writing an agreement. The parties come to the attorney with a settlement in mind. One of the parties is formally the client, and the other party is “pro se”, which means that they are unrepresented in the process. This is because in the legal system, an attorney cannot represent both parties to an action.

Another way to keep costs low is if the parties have most details figured out, but have a few sticking points. The attorney is able to advise the client of the legal standards, explain their chances on succeeding on that claim in court, and helping the parties reach a settlement. Again, the attorney only represents one party. However, the costs are significantly lower even for both parties to have attorneys if the parties cooperate outside of the attorney’s office to reach an agreement.

It is not impossible to use the court system to fix problems in original divorce documents. However, it is in your best interest to seek the advice of a lawyer before signing anything. An attorney is able to point out potential problems with agreements that you may not be aware of. An attorney also is able to make sure that you are protecting your rights in a divorce and that all issues are handled in the most efficient way possible.

Welcome To Our Blog

Michael Lammers — Sun, 09 Aug 2009 17:15:29 +0000

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