Divorce, Start to Finish, Contested and Uncontested
There are three parties to every marriage, both spouses and the State of Minnesota. When parties are married, the state recognizes and confers certain legal rights and benefits upon married couples. The process of divorce involves asking or petitioning the state or court to dissolve the legal bonds of marriage and to resolve all of the issues that have arisen by virtue of the marriage. Here in Minnesota, we have what are commonly called “no fault” divorces. In other words, neither party has to establish fault with the other to support a petition for dissolution. The Court only requires a determination that there has been an irretrievable breakdown in the marriage and only one of the parties is required to assert that such a breakdown has occurred.
I describe divorce to my clients as a process, not an event. I further breakdown my initial explanation of divorce into two categories, the substantive issues and the procedural issues. Very simply stated, the substantive issues, or substance of the case involves some or all of the following: spousal maintenance, physical and legal custody of minor children, child support and a division of the parties assets and debts.
The divorce process involves both a start and a finish and can be generally summarized as follows. The process is commenced when one spouse is served by the other with a Summons and a Petition or when the other spouse accepts the documents. The process is ended when a judge signs a Judgment and Decree commonly referred to as a divorce decree. Parties get to finish essentially in one of two ways, with an agreement or through a trial. The vast majority of cases (95+%) wind up with the parties entering into a settlement, which is drafted into what is called a Marital Termination Agreement or Stipulated Judgment and Decree.
Uncontested DivorcesA significant percentage of my cases involve uncontested divorces when the parties essentially have an agreement, but they need all of the paperwork prepared to move the matter directly from start to finish. I call this approach “the leapfrog theory”, in other words jump right from start right to finish. In uncontested divorces I can still only represent one of the two parties, but I do not view myself as the other party’s adversary. Rather, my role becomes more of a scrivener to write up the agreement and and all of the documents necessary to make sure that all of the legal requirements are met so that the agreement and corresponding Judgment and Decree is approved by the Court. Uncontested divorces can occur in as little as 60 days from start to finish.
Contested DivorcesWhat happens between start and finish when the parties do not have an agreement on all the issues is whatever is necessary to move the parties into a settlement agreement or to prepare the matter for a trial. Usually there is a period for exchanging information, which is called discovery. Discovery can be done informally if the parties and attorneys are cooperative. In other cases there are formal tools for requesting and obtaining information so that there is full disclosure on each side of the case.
The courts also typically require that the parties explore some type of dispute resolution process short of litigation, or a trial. Trials are time and resource consuming, expensive, adversarial and generally not a good way to resolve domestic dipsutes. There are a variety of alternatives to litigation, including mediation, arbitration, evaluation and other creative hybrid processes. In these days of shrinking resources in the court system, we attempt to tailor efficient and economical ways to resolve whatever disputes that arise.
If these efforts fail, the court conducts a pre-trial hearing to further encourage settlement but in the final analysis either party is entitle to a trial and a judge will resolve any remaining disputes. Fortunately, the vast majority of cases ultimately settle, however I have significant experience in trying difficult, contentious and complex cases when it becomes necessary.
In addition to the procedural continuum from start to finish, in every case there is another time line that runs parallel to the procedural time line. I describe as the emotional/psychological continuum. While the emotional and psychological state of each party is largely irrelevant to the substantive issues, it can have a huge impact on when and whether a case is ripe for settlement.
Typically, no two parties fall on the emotional/psychological continuum in the same space and time. Understanding and evaluating where spouses are at on this emotional/psychological continuum can be critical in moving the matter in the direction of an efficient and economical and hopefully amicable resolution to the matter. Recognizing and addressing the personal and human impacts of divorce on parents, children and families is a valuable skill in helping good people through unfortunate and often difficult situations.
Like so many things in family law, there is no substitute for experience and expertise whether the case is contested or uncontested. Feel free to call for a free consultation if you or a loved one finds themselves in a divorce situation.