If the parties have no minor children or if both parties are both represented by counsel when kids are involved, the divorce may be granted without a final hearing. If a hearing is involved (when there are kids involved but not two attorneys, or in some cases where the judge has some concern even though there are no children or there are two attorneys), it will just be a final default hearing. It is a rather simple hearing, typically only the Petitioner and the Petitioner's attorney are required to be there (although the Respondent and Respondent's attorney can be there, and sometimes it is helpful for them to be there). The Judge will want a record of the facts of the case and the terms of the agreement. The Petitioner (and the Respondent if there) will be sworn-in and the attorneys will ask questions identifying the facts and agreements. The signed document will be identified and entered into the record. The Judge may ask additional questions regarding the best interests of the children. And that will be it. The Judge will sign off on the agreement and the divorce will be entered with Court Administration in the next few days or weeks.
Need-based awarded mean that one party cannot afford the fees and that the other party has the means to pay. In many cases this can be a problem as neither party can really afford additional fees. Conduct-based fees are awarded when the court finds a party to be acting in bad faith and unreasonably contributing to the length or expense of the proceeding. As frustrating as the process can be, that does not necessarily mean the court will award conduct-based fees. And even if there is an award, that does not mean the other party will pay it. The expectation for many attorneys (myself included) is that my client will pay my fees. I am not interested in chasing down the other party for payment. If the other side happens to pay for what my client has already paid for, than that money will be passed along to my client, but I don't wait for the other side to decide to pay me.
There is also the practical problem that getting an award for attorney fees means that you have gone through the court process and are now in front of a Judge asking for a decision. If you are going to court on other issues, then it may make sense to ask for attorney fees. But, it does not make any sense to incur additional fees just for the possibility that the court will grant an award. In most cases, parties agree to each pay their own attorney, but the issue of attorney fees can be a discussion of negotiation and sometimes the parties will agree to a contribution for fees, or will offset fees in the property division.
The Summons and Petition must be personally served on the Respondent for the divorce process to officially start. This can happen by someone over the age of 18 (but not the Petitioner) personally handing the documents to the Respondent and then signing an Affidavit of Service in front of a notary. Personal service can also happen with the Respondent signing an Admission of Service in front of a notary. Once the divorce has officially started, the Respondent will have 30 days to prepare a formal Answer and Counterpetition (although in many cases this timeline is extended to allow the parties time to negotiate a settlement).
Now every attorney has a different approach to starting the divorce process. At least ever month I speak to someone who has just been served divorce papers, and the situation is typically this:
Some random third party has shown up at their home or work place to hand them a blank envelope containing only the Summons and Petition. They read the documents, not really knowing what they are or what they are supposed to do. They get to the Prayer for Relief at the end of the Petition and freak out – the Petitioner is asking for anything and everything and just seems to be crazy (The Petitioner earns more than the Respondent but is asking for spousal maintenance; The parties have been separated for several months during which time the Petitioner has hardly expressed an interest in the children but is now asking for sole legal, sole physical custody and child support; The Petitioner is asking for all of the property and requesting that the Respondent take all of the debt).
The Respondent is now scared and angry, does not trust the Petitioner or the Petitioner's attorney, and is ready to fight.
This is a very bad way to start a divorce – there is no trust or desire to work towards a resolution. Now maybe there are some cases which require a tougher approach, but in most cases, I find that a softer approach will result in a quicker (and cheaper) resolution with less conflict for the family. I tend to work with my client to ask for reasonable relief in the Prayer for Relief (what my client really wants and what we reasonably believe will be the final result). I always serve papers with a cover letter explaining what the papers are. In many cases, I have worked with my client to prepare a proposed Marital Termination Agreement to be included with the initial papers. If my client and I believe the Respondent is likely to sign an Admission of Service, and there is no reason the divorce needs to be started immediately, I will mail the documents, along with an Admission of Service to the Respondent, and the cover letter will explain that I need the Respondent to complete the Admission of Service and return it to me within a certain time frame, otherwise I will need to have the documents personally served upon Respondent. In most cases, the Respondent will return the Admission of Service.
The Respondent may consult with or hire an attorney, but instead of focusing on how to fight the Petitioner, guessing what the Petitioner may be asking for, and discussing all the possible issues, the Respondent and the attorney can review the proposed agreement and discuss settlement options. Right away we can determine what the parties agree to and what areas we need to work on, tailoring the case for the situation. How you start your divorce can have a big impact on how long your divorce process will be and how much time and money you spend fighting.
When parties reach a negotiation impasse, I often hear one party say “Let’s just go to trial and have the Judge decide that.” Unfortunately the parties don’t often realize just how long they will be waiting.
After a trial the judge has up to 90 days (3 months!) to make the decision. But first you need to get to the trial. In a divorce case, it may be several months (or over a year) before you even get there. First you need to work through the court process – attempt mediation, complete evaluations, have a pre-trial, etc. Then you need to have your trial.
Each county handles their trial calendars differently. In the larger metro counties, you may be assigned a certain trial date that is specifically for your case so you know when your trial will be. But most other counties operate with a mass trial calendar. The judge has a certain week or two every couple months for trials. There is a list of trials for that certain week and you are assigned a number. Everyone is supposed to guess how long their trial will last, and try to resolve all issues before trial. The week of trial, the trials will go in order and the judge will hear all that he/she can for the week. Most of the time there are more cases assigned then the judge could possibly get through (because most cases do settle before trial). However, if you are somewhere near the middle or end of the list and there are cases ahead of you that have not settled (or even if you are number 2 or 3, but the cases ahead of you require multi-day trials) you will likely get bumped to the next available trial slot. It has not been unheard of for a case to get bumped a few times, you could be waiting for trial for several months.
In case you haven’t heard, the court system (like everything else) is broke. Starting July 1, 2009, Minnesota court filing fees will be increases. The new family court filing fees for most of the state (Hennepin County tends to run higher by $2) will be:
- $400 Divorce Filing Fee (previously $330) – In most cases each party will pay the filing fee (This can be avoided IF the parties have reached a complete agreement prior to entering the court system. But be prepared to pay if you are fighting). The good news is, once you have paid the case filing fee, you won’t have to pay it again.
- $100 Filing Fee for all Motions and Responses (previously $55) – If you need to ask the court for temporary relief during a divorce proceeding, or wish to bring a motion post-divorce to enforce provisions, modify child support, etc, you will be paying a $100 to the Court. If the other side brings a motion you disagree with, you will be paying $100 to contest it. And, if you did not pay an initial case filing fee before, be prepared to pay it now.
So, if you have been thinking of modifying child support or filing for divorce, act now and save a few dollars. Every little bit helps.
Many times I will hear a party say “we’ll just let the judge decide that.” Very few people realize just how long they will be waiting for the judge to decide.
The courts want parties to be able to work out their disagreements and resolve everything. Before the judge will hear your case, you are expected to (and given every opportunity to) talk to the other side, reach some agreements, and/or try mediation. A judge will only make substantive decisions (such as deciding custody, parenting time, or child support) after a trial, motion hearing, or temporary hearing. And even then the judge has 90 days after the hearing to make a decision.
If you want to resolve the conflict, focus on the best interests’ of your family, and get on with your life – then try talking to the other side, give mediation a good-faith attempt, and work with your attorney to prepare and respond to reasonable settlement proposals.
If you want to continue the fight, destroy any potential relationship with the other side, and pay your attorney way too much money, then sit back, ignore the settlement offers, refuse to participate in mediation, and let the judge decide your case.