Frequently Asked Questions

Regarding Divorce

WHEN IS THE LAWYER RETAINED

A lawyer is retained to represent your interests in a dissolution matter after you have signed a Retainer Agreement and paid the requested retainer fees.  Until you sign a Retainer Agreement and pay the retainer, the lawyer will not begin doing any legal work with regard to your matter.

SHOULD I TELL MY LAWYER THE TRUTH ABOUT EVERYTHING?

Yes.  Trust and credibility is a requirement when it comes to the relationship between you and your attorney.  If you lie about assets or income or other facts, your attorney’s trustworthiness could be damaged when he/she is dealing with your spouse’s attorney and the court. 

Make sure that your lawyer knows all the facts.  He/she will worry about protecting your best interest in connection with those facts.  If you do not tell him everything, he cannot plan against pitfalls that he may encounter.  He cannot give you accurate predictions about the possible outcome of your case if you do not provide him with accurate information.

WHEN SHOULD I CALL MY ATTORNEY? 

Due to a busy schedule in and out of court, a lawyer cannot guarantee a time that he/she will be available for calls. 

If a question comes to mind, review this packet and if your question is not answered, contact your lawyer’s office and speak with his secretary and/or assistant.  Relay your question to him/her and he/she will inform your attorney about your question.  Your attorney will then contact as soon as he is able to with the answer to your question or he/she will have someone from his staff return the telephone call for him/her.  Remember that an attorney’s time is valuable and should be saved for only absolutely necessary questions.  Also, be reminded that by speaking to the attorney’s secretary/assistant you are actually saving yourself money since the secretary/assistant’s time is billed out at a much lower hourly rate.

IMPORTANCE OF THE SECRETARY/ASSISTANT

Your attorney’s secretary/assistant is aware of your case and of all the correspondence and telephone calls between your attorney and your spouse’s attorney.  She may not be able to discuss the actual contents of this conversations nor give you legal advice but she can, however, reassure you that they have taken place and what the status is of your case.  Use the secretary to find out information about calendar dates, court times, depositions, and office appointments.  Limit your contact with your attorney to only very important matters.

WHAT IF MY ATTORNEY DOESN’T RETURN MY TELEPHONE CALLS?

Remember that although this is the only divorce case you have going, your attorney has several others to deal with at the same time as yours.  Don’t telephone your attorney to vent your personal frustration over your broken marriage or the progress of the divorce.  Use the telephone ONLY to relay pertinent information.  Communications that would take longer than a brief telephone call should be done by letter or by setting an appointment to meet with the attorney. 

WHAT IF MY ATTORNEY DIDN’T ANSWER MY QUESTION? 

He/she may have answered the question but it could be possible that you just  didn’t understand the answer because he may have used legal terms or terms that you are not familiar with.  Also, remember that the dissolution process is an emotional time for you.  You may not be listening as closely as you should be.  Make sure that you listen carefully to your lawyer’s answer instead of contemplating your next question.  Don’t be afraid to take notes.

Always be prepared.  Write down specific questions before you meet or call your attorney.  If an answer to a particular question is not answered satisfactory or you did not understand the answer you were given, tell your attorney immediately.  Don’t be afraid to show your lack of understanding.  It is important that you understand what is going on with regard to your case and you should ask your attorney to explain his/her answers thoroughly if you do not understand them. 

WHAT IF MY ATTORNEY AND I DON’T AGREE?

You should trust your attorney in matters of strategy and tactics because that is why you hired him/her.  You may want your attorney to take a course of action that may be unethical or contrary to your best interest.  In such cases, your attorney is justified in refusing to follow a course of action.  Be mindful that your attorney is experienced in the dissolution process and the constantly changing case laws that dictate what the courts will or will not do.  However, if you do not agree with him, you should tell your attorney immediately and give him/her an opportunity to explain why a particular course of action is being taken or should be taken.    

CAN I GET THE HOUSE BACK IF I LEAVE IT VOLUNTARILY?

If your spouse opposes your having the house, the longer you are gone the more difficult it is for you to get it back.  Talk to your attorney about your options before you decide to leave the house.

CAN I DATE DURING THE DIVORCE PROCEEDING?

Dating someone casually will not affect your divorce proceeding.  However, if your dating involves a considerable amount of time away from the children or staying out overnight, it could be used against you in a custody dispute.

Be mindful also that your spouse’s attitude toward your dating is crucial.  If he/she is resentful of your dating, he/she could be malicious and that could certainly affect your dissolution by them attempting to drag out the process longer or their being less cooperative or willing to compromise.  They may also attempt to use it as power against you to attempt to reduce your share of the property settlement. 

WHAT IF MY SPOUSE IS ABUSIVE TOWARDS ME OR THE CHILDREN?

A spouse does not have any more right to physically abuse you or your children than a stranger would have.  If your spouse is abusing you, contact your local police department.  Criminal charges could be brought against your spouse for assault and battery or child abuse and they should be brought when appropriate.  If the abuse continues, you may want to contact the court of your county to file for a Restraining Order or Order for Protection to prevent your spouse from coming to your house or place of employment.  Your county courthouse would have information with regard to how to go about filing for a Restraining Order or Order for Protection against your spouse.

HOW DO I DEAL WITH MY SPOUSE DURING THE DIVORCE PROCESS?

Be mindful that divorce tends to bring out the worst in people.    You should follow the following advice when dealing with your spouse during this time:

1.       Your spouse and you should discuss settlement agreements only through your attorneys.  This will assist your attorney in making sure that you are getting the best deal possible.

2.       Walk away from arguments or conflicts.  The only issues that you need to discuss with your spouse during the divorce proceeding would be pick up and drop off times for visitation with the minor children; everything else should be discussed through the attorneys.

4.       Expect your spouse to dislike your attorney and to attempt to undermine his/her influence.  Your attorney is going to always have your best interest in mind (or the best interest of your children) and it may not always agree with what your spouse believes.

5.       Don’t enter into private negotiations, enter into any agreements or

sign anything with your spouse.  Learn to say: “Talk to your lawyer

and have him/her talk to mine”.

          6.       When in doubt believe your attorney not your spouse.

WHAT DOES NON-FAULT DIVORCE MEAN?

Non-fault divorce means that the court is not interested in who caused the breakup of the marriage.  It does not consider any misconduct on you or your spouses part when awarding child support, spousal maintenance (alimony) and property settlements.   Focus is placed on not what the other party did to cause the marriage to breakdown but instead of how each party can get an equal division of the assets of the marriage.

CAN ONE LAWYER REPRESENT BOTH OF US?

It is not always necessary to have two separate lawyers, one can never represent both parties in a marital dissolution action if there are any disputed issues.  If the matter is simple, one of the parties can appear “pro se” and represent him/herself.  One lawyer would draft the necessary documents; you could then share the cost of that lawyer’s services.  However, be cautioned that if there are issues with regard to support payments, custody or visitation issues or the division of personal property, the attorney is only allowed to represent one of the parties without having a conflict of interest with the other party. 

WHAT SHOULD I EXPECT FROM MY LAWYER IN HOW HE/SHE HANDLES MY DIVORCE CASE?

Your lawyer should assist you in maintaining perspective as to what is a fair settlement.  They should assist you in discovering all the assets and income information necessary to arrive at a fair settlement.  They should be prepared to litigate issues that cannot be resolved by agreement.  He/she should be able to control you in order to avoid willful violation of court orders and agreements.  He/she should also control the opposing side and their frustrating attempts to take advantage of you by willful or arbitrary conduct. 

A dissolution is not necessary a victory or loss for any one party.  Your lawyer should prepare you to accept the compromises.  You should not expect a miracle or a stunning victory.  Both attorneys are seeking a fair settlement for their respective clients.  Each party needs to be able to make compromises to make a fair settlement.  Your lawyer should discourage your desire to get revenge upon your spouse by financial or other means. 

WHEN SHOULD WE TELL THE CHILDREN ABOUT THE DIVORCE?

Tell your children about the divorce as soon as it becomes obvious that it is happening.  Be honest with the children.  Don’t give them false hopes that the relationship will continue if it is obvious that it will not.  Make it clear to the children that the divorce/separation is not their fault but don’t blame your spouse for everything.  When telling the children about the divorce, keep it simple and straightforward.  If possible, both spouses should tell the children at the same time.  Reassure the children that you both still love them and that just because the two of you will no longer live together that will not change that fact.  Let the children express their feelings (tears, anger, hurt, pleadings).  Tell them with home and where they will be living if that has been already agreed upon.  If it is not, encourage the children to express what they want but do not make them think they have the burden to choice between the two or that they are rejecting one parent by choosing the other.  Do not encourage the children to take sides.  Assure the children that you both will always be there when needed and make sure that you follow through on this promise. 

DO MOTHERS ALWAYS GET CUSTODY OF THE CHILDREN?

While it is generally assumed that the primary caretaker of the children has always been the mother, many fathers are proving to have been the primary caretaker of the children and are seeking custody.  The parent that proves that they are the primary caretaker of the children (taking care of their daily needs) and have been for the majority of their lives is the parent likely to obtain custody of the children.  However, if there are any allegations of abuse custody may be awarded to the other parent. 

If custody is going to be contested, we have a list of questions that need to be answered in order to prove who is the better parent for the children.  Please be advised that the best interests of the children are always given high priority in the court’s making custody decisions.  You should also always have the best interests of your children in mind.   You should not seek custody only to gain revenge against your spouse for an unwanted marital breakup.  Not only does this bring the cost of the dissolution up but the children are the ones that are injured in these battles.

WHAT IS JOINT LEGAL CUSTODY?

Joint custody is where BOTH parents have legal custody (meaning they have a right to be involved in decisions with regard to the children’s lives, religion, health care, education, etc.) and where one parent has primary residence of the children.  This means that while both parents have a say in what goes on in the children’s lives, one parent has physical custody of the children (they live with that parent). 

WHAT IS JOINT PHYSICAL CUSTODY?

Joint Physical Custody is where both parents SHARE physical custody of the children.  This would mean that the children live with each parent at an equal or close to equal time.  The courts normally only grant joint physical custody if the parents are living in the same neighborhood and the children would be going to the same school no matter which parent’s home they are living at.  Joint physical custody will only work when both parents are more interested in the children’s best interest than their own interests.  Most divorced people cannot sustain a sufficient degree of cooperation to keep personal antagonism out of this less-structured custodial arrangement.

CAN THE CHILDREN CHOOSE WHOM THEY WISH TO LIVE WITH? 

In the State of Minnesota, a child needs to be at least ____ years of age before he/she can express a preference in court.  However, this preference is weighed by the judge in light of the child’s level of maturity and the reasons for the preference.  Many factors are taking into consideration in determining custody of a child and even if the child has expressed an interest in living with one parent but the court has found that the child’s best interest may not be living with that parent, it can award custody to the parent who best suits the child’s best interest. 

Don’t force your child to make a preference.  Most children do not want to be put in a position to have to choose between their parents.  Also, don’t try to manipulate their opinion by making promises to them of what it would be like living with you as opposed to your spouse.  Remember that divorce is difficult for children and efforts should constantly be made to make this period as easy for them as possible.

CAN I MOVE WITH THE CHILDREN OUT OF STATE?

If there is no custody action pending or a court order indicating that you cannot do so, you may move the children out of the state if you have your ex-spouse’s written permission prior to the move. 

If your spouse does not agree to your leaving the state, it will be necessary to petition the court for an order allowing you to move the children’s residence to another state.  Be mindful that the court will only approve such a petition if there are valid reasons for the move such as remarriage, a health condition or an opportunity for a better living.  It MUST be in the children’s best interest to move them to another state and agreements for visitation must be worked out.  Child support obligations may be modified in order to accommodate the additional expense of transporting the children to and from visitation.  However, be advised that if the children are being taken out of the state to keep a parent from visitation with his/her children or the move is not in the best interest of the children, the court may deny your petition to move. 

WHAT IF THE CUSTODIAL PARENT MOVES THE CHILDREN OUT OF THE STATE WITHOUT MY PERMISSION OR A COURT ORDER?

You should have your attorney immediately file a petition immediately asking that the children be returned to their home state and that a contempt citation be issued against the parent whom removed the children from the state in order to change their residence.  Most states may allow the custodial parent to remove the child from the state for a change in residence if good cause is shown and custody will not be changed solely because a child has been removed from its home state without your permission. 

WHAT IF THE NON-CUSTODIAL PARENT MOVES THE CHILDREN OUT OF THE STATE WITHOUT PERMISSION?

If your ex-spouse does not immediately return the children and you are unable to travel to where the ex-spouse has moved the children to bring them back, you need to have your attorney file an immediate petition for contempt of court against your ex-spouse.  Your ex-spouse may be subject to a fine or imprisonment for willful violation of the custody agreement.

HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?

The Non-Custodial Parent’s income and assets are examined.  Net income is calculated after the deduction of federal and state taxes, social security, pension contributions, union dues, insurance payments and the like.  Using this net income a certain standard percentage (Child Support Guidelines) are used to calculate the percentage of net income that needs to be paid. 

DOES MY CHILD SUPPORT OBLIGATION COVER ALL MY FINANCIAL OBLIGATIONS TO THE CHILDREN?

You may also be required to assist in the payment of college expenses; and unreimbursed medical, dental and hospitalization costs. 

CAN I GET CHILD CUSTODY AND SUPPORT IF OUR DIVORCE IS STILL PENDING?

A temporary motion may be filed with the court requesting that the court issue a temporary order giving you custody of the children and requiring your spouse to pay child support.

WHAT IF MY SPOUSE REMARRIES?

If your spouse gets married, his/her new spouse has no obligation to support your children.  Your spouse’s child support obligation will not change just because he has remarried.

DO I HAVE TO PAY CHILD SUPPORT IF MY SPOUSE IS REFUSING ME TO HAVE VISITATION/ACCESS TIME WITH OUR CHILDREN?

Payment of child support and visitation/access time to children are two totally separate issues.  You may not stop paying child support just because you are not getting visitation/access time with your children.  Also, your spouse cannot withhold visitation/access time from you just because you are not paying child support.

HOW ARE ORDERS FOR VISITATION OR SUPPORT ENFORCED? 

If your ex-spouse is not abiding by a court order, you must file a motion for contempt.  An Order to Show Cause may be requested from the court requiring them to appear in court and prove to the court their reasons for not abiding by the court order.  If the court finds that they have not proved good cause for not abiding by the court’s order, the court can find them in contempt of court, fining them or putting them in jail until such time as they prove that they are able to abide by the court’s order.

Child support payments are automatically done through the child support enforcement agency in the county that your divorce is pending or finalized in.  Wage assignments are sent to the Non-Custodial Parent’s employer and support payments are taken directly out of their paychecks and sent to the agency. The agency then forwards the support checks to the Custodial Parent.  You can obtain more information about this from your county’s child support agency and/or your case worker.

WHAT IS REASONABLE VISITATION/ACCESS TIME?

Reasonable visitation describes the Non-Custodial Parent’s time with the children when there are no specific times set out in a visitation agreement.  A mutual understanding between the parties on what is reasonable needs to be worked out.  Each family is different when it comes to their definition of “reasonable” time.  If you and your spouse cannot agree as to what “reasonable” means, you should have specific times worked out in the Judgment and Decree and/or request that visitation be settled by a Visitation Expeditor.

SHOULD I CLOSE THE BANK ACCOUNTS?

If you are able and willing to account for the amount of money withdrawn from the bank account, you certainly can close a bank account.  However, be mindful of the fact that you will need to prove how you spent the money.  You cannot dissipate assets of the marriage in an attempt to get more than your fair share from the settlement.  Be prepared to account for the whereabouts of all assets.

WHAT SHOULD I DO WITH SAFE DEPOSIT BOXES?

Inventory the contents.  If you feel you need to protect the contents, place them in another safe deposit box.  However, be mindful that you cannot hide assets from your spouse. 

WHAT SHOULD I DO TO PROTECT MYSELF FINANCIALLY?

• Gather information regarding income and assets;

• Determine what property you own, when it was acquired and how, its value and how title is held. 

• Determine actual physical whereabouts of assets and title documents.

• Make a note of all missing property that you believe your spouse may have.

• Talk to your attorney about what documents should be copied so if they are later hidden, altered or disappear; you can use that dishonesty as leverage to your own advantage.

WHAT IF MY SPOUSE OR I HIDE MARITAL ASSETS?

If you remove assets and put them into safe-keeping there is no problem as long as you admit their existence.  However, if you claim the asset is lost the judge may award the missing assets to you and award your spouse an equal amount of the remaining assets.  If you can prove that a certain asset was spent or sold for good reason (payment of family debts or legitimate living expenses) there may be no penalty to you unless it is in violation of a court’s restraining order.

WHAT SHOULD I DO ABOUT CHARGE ACCOUNTS?

Since both spouses are legally liable for balances due on joint charge accounts, you should base your decision on whether or not to close the account on how much you trust your spouse.  If he/she has a history of financial irresponsibility, or if there is a possibility that they would be spiteful towards you, you should close this account.  Otherwise, you could leave your accounts as they are.  However, be advised that should your spouse make charges on the account, you will be responsible for half of those expenses.

You should write your credit card companies and request them to establish a credit account in your name only to ensure that you are able to have credit after your dissolution.

After your divorce is final, all credit cards should be transferred into only the name of the spouse who is taking over financial responsibility for that debt.  If one spouse takes the credit card as part of the settlement, the other spouse should inform the credit company that his/her name should be removed from that account. 

SHOULD WE FILE A JOINT INCOME TAX RETURN?

If a joint return would save you both money, the answer is yes.  However, a joint return cannot be filed for the year in which you are divorced.  Speak to your accountant about what would be more economical for you.