April is Autism Awareness Month, the two month anniversary of the Marjory Stoneman Douglas High School shooting, and the 19th anniversary of Columbine. Why talk about ASD and school shootings in the same sentence? And why a divorce blog? I will get to that. But as a lawyer-mom, these two issues are at the forefront of my mind, and probably the minds of many parents and educators these days. We should rest assured that our kids would know what to do during a lock-down because they have spontaneous drills throughout the year, right? Ugh…what am I saying? The fact that kids NEED lockdown drills is downright outrageous! Nonetheless, I wondered what the younger kids are told and what happens during these drills. Well, lucky me, when I recently volunteered in my son’s elementary school classroom, the school had a lock down drill. And one word sums up the experience: chilling. Lockdown drills are very different from the fire and tornado drills we had as kids. I’m sure everyone remembers the fire drills – exit the classroom quickly and get away from the building. Or the tornado drills – go out to the hallways, away from the doors and windows, and cover your head with your hands. Up until about 1999, THOSE were the drills Minnesotan kids experienced. In fact, most the time, much to our teacher’s chagrin, we were laughing and joking around. A lock down drill, however, has a very different vibe. The kids must be EXTREMELY quiet. They huddle into a specific area and are instructed to remain eerily still. This had been a bustling class (and school) just moments before, but now it was so quiet, you could hear a pin drop. This was a class of 30 second graders, so I was stunned at the deafening silence. Just when I thought it was over (it seemed like forever, but was probably two minutes) someone rattled the door handle. Forcefully. Not a peep from the kids, but I jumped. Luckily, they didn’t see me or they might have erupted into giggles. We had to continue to remain quiet and motionless. Interestingly, I don’t remember what happened next; that is, I don’t recall if there was a bell or another signal indicating the drill was over (I think I was sort of in shock). The kids went about their business, working on their projects, like it was no big deal. Only it was a big deal. At least it was to me and the other adults in the room. I just looked at the staff, wide-eyed, and shook my head. School lock downs are now a reality for school-aged children. It makes my heart ache. I asked my son that evening why they have lockdowns and he nonchalantly said it was in case anyone wants to break into the school. That was it. Simple enough. But as we grown-ups know, there is nothing simple about this. My son is a “mover and a crasher,” so I was relieved he made it through the drill. But I thought about the other high-needs/special-needs kids in his school. For any child who has physical needs or doesn’t cognitively understand the drill, simply can’t be quiet and remain calm, needs to move, or overreacts when accidentally bumped or touched by a classmate, what would that child do in this drill? Or, God forbid, in a REAL situation? With more and more kids being diagnosed with ASD, what protocols are in place for them? Is there a special section in their IEP about drills? There ought to be. This made me think about special-needs kids whose parents are going through a divorce. The teachers are aware of kids’ needs (or should be). So, too, should the divorce team. A child’s symptoms often reemerge or worsen when they are stressed, which could happen during parental conflict and/or separation. Child specialists can work with the parents and the child’s pediatrician and/or therapist to help create a parenting plan that is in the child’s best interests. Like it or not, otherwise fit and loving parents need to work together for there children’s sake. Fortunately, the Collaborative process can help parents really focus on their kids, by putting them in the center, rather than the middle, of the divorce process. Every family situation is unique. Every family and every child deserve a creative plan to help move them forward, restructure, and get to a new “normal.” Drill and lockdown protocols included.
In the early days of separation and divorce you may find the idea of growing from your divorce difficult to believe. You may be in a state of depression or denial wondering how your life will carry on, much less that you will grow from this life change. It may be difficult to find the silver lining, yet the simple truth is that you can (and will) grow from this. You may or may not have had much of a choice in whether or not you are getting a divorce, but you DO have a choice whether to grow up or grow down through this process. In a bad or difficult marriage it is easy to see how a person might grow from getting a divorce, but all divorces bring the opportunity for growth. Your divorce will likely change the way you view the world. Your life may be functioning completely different than before. Maybe you are having to look for a new career or add a part time job to make ends meet, or maybe you’ve been out of the workforce for years and your divorce is forcing you back in. Maybe you’ve had to move to an apartment or back in with your parents or a friend. Maybe your kids are at a new school as a result of your divorce. Maybe your entire social circle has now changed. It’s how you view these changes and react to your new normal, that promotes growth. Growth from your divorce can appear in a number of ways. Emotionally, spiritually, physically, etc. Even something as simple as learning a new skill that your spouse had always managed like trimming the shrubs, or online bill pay. Spiritually your faith might deepen or may struggle as you get through some trying times. Emotional growth may take a bit longer. There may be some dark and difficult days before you start to grow emotionally, but slowly it will happen. Your priorities will change and grow. If you have shared custody with your children you will likely start to value your time together all that much more. Some things that were priorities during your marriage may no longer hold a significance to you. Growth after divorce becomes a way to cope. Growth after divorce becomes a way to survive. Growth after divorce becomes empowerment. Growth after divorce becomes a new, better you.
You may remember the “Death and Dignity Act” which was brought to light in the fall of 2014 by the young advocate with terminal brain cancer, Britney Maynard. Britney was a beautiful, well educated, 29 year old, who moved to a different state so that when the time came she could legally decide when to end her life, so that she could leave this world with her dignity intact. Dignity is defined by the Merriam-Webster Dictionary as “a way of appearing or behaving that suggests self-respect and self-control.” No, divorce is not a death sentence. What is important, however, is divorcing with dignity. A divorce brings out a range of emotions which will seem to take over your life. It is possibly to divorce respectfully, you’ll find a gamut of blogs here regarding divorcing collaboratively, but keeping your dignity intact throughout a divorce, especially with an uncooperative spouse can prove to be difficult. Here are our top three tips for divorcing with dignity:
- Focus on YOU. Especially in a divorce with children involved, YOU may be the last person on your mind. Whether that means you forget to eat, have no energy to cook dinner so you find yourself going through the drive through 5 days a week, or maybe you find yourself turning to alcohol for a stress release; retaining your health will help you to maintain your dignity during your divorce. Even if you’ve never ate healthy or worked out, now is the perfect time to start. Put down that glass of wine or bowl of ice cream, and go for a walk, starting is the hardest part. Give yourself the gift of extra confidence and energy during this difficult time, you will be thankful that you did.
- Work with the hand you’ve been dealt. The old “turn lemons into lemonade” theory. We posted a great quote on our Facebook page a few weeks ago that really resonated with people, “When you can’t control what’s happening, challenge yourself to control the way you respond to what’s happening. That’s where your power is.” Stop focusing on what could have/should have happened, and start focusing on what IS happening. Focus on HOW you are handling the situation. Understand that this is new territory for yourself, and don’t be afraid to find a mentor or even a therapist to help guide you through this uncharted territory.
- Remembering your ex is human, and so are you. It’s easy to forget the details along the way that led to your divorce, especially if there was a major “final straw” that ended it. Marriages are hard work, and often times neither party is giving 100%. For you to maintain your dignity, you must accept that you are just as human as the next person, your ex included. Sometimes having to forgive someone who may not deserve forgiveness is vital to maintain your own dignity.
A lot of confusion exists about the terms “separation” and “legal separation” under Minnesota law. While both refer to a change in marital status, they have distinct meanings, processes, and consequences. “Separation” means only that you are living in different residences. Minnesota law allows spouses to live separately while still married. Separation works best if the ongoing responsibilities for care of the children, financial support, and bill payment have been discussed and agreed upon. While separation does not involve a legal proceeding, there may be legal consequences to living apart. Therefore, it is a good idea to consult with an attorney before separating to better understand your options. “Legal separation” does require court involvement. In fact, in Minnesota a proceeding for legal separation is very similar to one for divorce. While the law does not require that divorcing couples live separately, parenting time, child support, and spousal maintenance must be addressed in the final court order. A legal separation can also include the division of assets and debts. The major difference between a legal separation and a divorce is that after becoming legally separated you and your spouse are still married to each other. Because the cost, timing and issues involved are similar to a divorce, it is much less common. Couples who do legally separate usually do so due to religious beliefs against divorce. Because a number of detailed legal documents must be drafted, signed, and filed with the court, a lawyer’s help is essential if you decide to seek a legal separation.
A large component of a divorce is dividing the assets that you and your spouse accumulated during your marriage. Now that the divorce decree is completed, it is essential to start retitling assets as soon as possible. Retitling of assets confers control by defining ownership and restricting access. A good way to begin this process is to create a personal net worth statement that lists all of your assets and liabilities, per the divorce decree. This statement will serve as the master checklist in your retitling process. Every asset has its own retitling requirements, but essential to the process are the following documents:
- Current Identification, reflecting any name change if applicable
- Certified Divorce Decree (see our blog on changing your name)
- Account information for bank accounts, investments, loans and credit cards
- Social Security numbers for both you and your ex-spouse
- Each of you open individual accounts in your own name
- Complete a letter (called a “letter of instruction”) explaining that due to divorce, you would like to divide your joint account per the divorce decree, and clarify how the joint account should be divided.
- Both of you sign the letter
- Have the letter notarized (banks accounts, etc.) or, Signature or Medallion guaranteed (for investment accounts; it will depend upon the specific investment company as to which guarantee is required). A notary is quite common and can be found at many institutions. Both as signature and medallion guarantee can be obtained at a bank, credit union or investment company (note that this is different than being notarized).
- Mail the letter along with a certified divorce decree to the company.
Choosing an attorney is a critical decision and not to be taken lightly. Equally if not more important is who your spouse chooses to have as their attorney. You can follow all the steps in this series of posts on choosing an attorney but if your spouse doesn’t do the same thing or something similar the likelihood of a successful cooperative or possibly collaborative divorce process is significantly reduced. This means an increased chance of litigation or at least a contentious process, which will be at your expense and your family’s expense. If you are like most of us, you will want to keep as much of your hard earned dollars in your family. In an ideal world, which we know exists only in our minds, the two attorneys not only know each other but have worked on cases together representing opposing clients and have achieved settlements that both spouses can live with. I will close this post with some basic questions you may want to consider asking attorneys when doing your research and interviewing. This is not meant to be an all-inclusive list. Add your own questions you deem important.
- Do you only work on divorce cases or do you practice other areas of law? If not exclusively divorce work, what percentage of your work is handling divorces?
- How long have you been working with divorce cases?
- How do you approach handling a divorce case? Tell me how you would proceed with a divorce case like mine.
- How many divorce cases do you typically handle in a year?
- What divorce processes do you use?
- During the past 3 years approximately what percentage of your cases have been:
- Would other people be working on my case with you? If so what are their qualifications and how is their time billed?
- What is your hourly rate and how do you bill for it? What exactly is billed besides your time? I.E. travel, copies, long distance calls, emails, etc.
- Do you require a retainer? If so, what is the amount? If I decide not to work with you will it be completely refunded?
- What do you expect from me as your client?
- What should I expect from you as my attorney?
Choosing an attorney to represent you in a divorce proceeding at first may sound fairly straightforward. Too often I see this critical step not being given the attention it deserves. Sometimes it is simply a friend, relative or co-worker who refers someone who they felt or heard was good. While everyone means well, I suggest they probably don’t know what your goals and interests are for your divorce. They don’t know if a particular attorney is a good fit for you. Sometimes a client will find the first attorney who tells them what they want to hear. This often is a big red flag. Ultimately, only you will be able to decide who the best fit may be for your circumstances. I hope this three part series of posts on the importance of choosing an attorney, issues to consider when choosing an attorney, and finally some questions to ask a divorce attorney, will provide you with some valuable insights. I believe choosing an attorney is the third most important decision you will make on your journey to get unmarried. Remember in The first post of “Getting Unmarried” the most important decision is deciding to get unmarried in the first place. In Part II, I wrote the second most important decision is to research and decide “How to get unmarried;” essentially deciding on the divorce process that you feel–and hopefully your spouse feels–will accomplish the goals you both want to achieve. The third most important decision I’ll cover in this first of a three part series will be on the importance of choosing an attorney for yourself and equally as important if not more important is who your spouse decides to hire as an attorney. But let’s put first things first. In my way of thinking, you can’t begin to choose an attorney until you first, decide to get unmarried and, secondly, decide what type of divorce process you and your spouse want to use. Provided you have made these first two decisions, let’s make an assumption that both you and your spouse will want an attorney. If you have children from your marriage and or have significant assets and/or liabilities to ultimately allocate between you and your spouse in a property settlement, I strongly encourage everyone with these circumstances to be represented by an attorney. Let me disclose here, I am not an attorney. Too many do it yourself divorce packages often result in repeated appearances in court and end up being significantly more costly to the clients down the road. Leaving it to guesswork or not giving your property settlement the attention it deserves can be costly. Remember your marriage may not last forever but your property settlement will. If you have children let me share this quote by Neil Postman, an American writer and professor, with you. “Children are the living messages we send to a time we will not see.” When children are involved they will be watching closely for the messages you and your spouse send to them about your divorce. They will live and carry those messages throughout their lifetime. For these reasons, give careful and thoughtful consideration to the process you choose for your divorce and the attorneys both you and your spouse end up hiring. In the second part of this series, I outline important issues to consider when choosing an attorney.
A recent article, “For gay couples, divorce comes with extra costs” describes the difficulties some people have faced in getting a same-sex divorce. Some of the difficulties identified have been addressed in Minnesota’s recent same-sex civil marriage legislation and others are not unique to same-sex couples. Here are the problems identified in that article and my thoughts. Problem: Courts haven’t figured out how to handle these new same-sex marriage divorce cases. The recent legislation in Minnesota addresses this issue by making it clear that all existing laws dealing with “marriage” now apply to the new same-sex marriages. This includes all laws concerning divorce which have been in effect for decades. The courts in Minnesota will apply the same divorce rules and procedures for divorcing same-sex marriages. Problem: Location, location, location. Many couples travelled to a state recognizing same-sex marriages in order to be married but now reside elsewhere, in a state where same-sex marriages are not legal. States that don’t recognize same-sex marriages won’t grant a divorce to a couple whose marriage is viewed as unlawful. Can the couple return to the state where they married to get divorced? Most states have a residency requirement, typically residing for six months in that state, before a divorce proceeding may be initiated in that state. The Minnesota legislation addresses this problem. It allows a divorce action in Minnesota even if neither party resides in Minnesota if the civil marriage was performed in Minnesota and neither party resides in a state which recognizes same-sex marriage and allows divorce actions for such marriages. So, if a same-sex couple married in Minnesota and later moved to Wisconsin where same-sex marriages are not legal, they can be divorced in Minnesota. Problem: Time together: Reality vs. legality. Many same-sex couples lived together for years before being able to legally marry. During the years or decades before marriage, they acquired assets, bought homes together, shared expenses, acquired debt, and commingled their finances. Yet, under traditional divorce law, it is only assets and debts acquired during the marriage that are considered. This is also a problem for straight couples who live together for years before marrying or who never marry. When their relationships end and they need to divide their assets and debts, divorce laws don’t help them. Unless they entered into a prenuptial agreement addressing how these assets and debts acquired before the marriage would be divided, or if never married – a contract addressing these issues, they would have a difficult time finding an efficient legal remedy for their situation. Litigating these issues in court will be expensive. These issues can be addressed in the collaborative process, which is not limited to divorces, and where people with unique problems and issues not adequately addressed in traditional law forums can reach agreements. Once agreements have been reached, these agreements can be filed with the court and made into enforceable court orders.
I recently met with a man (I’ll call him John) whose wife wanted to divorce. He was very much against ending the marriage. He went to the office of his wife’s attorney presumably to discuss settlement, but instead received his Wife’s proposal for settlement set forth in a Summons and Petition. Over the next six months, he attempted to meet with his wife to discuss her proposal or alternatively what could be done to save the marriage. Though the couple was “getting along” while continuing to live together, no meeting took place to discuss the divorce or the possibility of reconciliation. When John came to meet with me, a collaborative divorce attorney, he handed me two un-opened letters he recently received from the District Court. The first was a notice for an Initial Case Management Conference (ICMC) court appearance which he had missed. The second, was a notice for a default hearing the next day to grant the divorce! At issue, was up to $50,000.00 that John would lose if the divorce was granted based on his wife’s proposal in the Petition. Obviously, I advised John to appear at the default hearing and throw himself on the mercy of the court to delay the default hearing so he could participate in the divorce proceeding. Regardless of whether or not John’s version of the facts are completely accurate, it can be confusing to know if and when a legal proceeding is commenced. In Minnesota, a divorce action is commenced when you are personally “served” with a Summons and Petition for Dissolution of Marriage. “Service” is most frequently accomplished when a person over the age of 18 years old—who is not your spouse—delivers you a copy of a Summons and Petition signed by your spouse, now called the Petitioner. If the Petitioner is represented by an attorney, the documents are also signed by the attorney. “Service” does not need to be done by the sheriff or police. It is frequently performed by private process servers. It can also be performed by your neighbor or a relative. The documents simply needs to be handed to you by a person over the age of 18 (but not your spouse) who later files an Affidavit with the Court swearing on that date he or she delivered to you a Summons and Petition. Once service on you has been made, the clock starts ticking as to when you must respond to the Petition. If you fail to respond appropriately, the Court can grant the Petitioner a divorce based on the proposal set forth in the Petition. This is what happened to John. He did not realize he was officially served when the legal assistant at the attorney’s office handed him a Summons and Petition. It was more confusing because the documents were not signed by the wife’s attorney. Instead, the wife signed the documents “pro se”, meaning she was representing herself. It became even more confusing because the parties continued to live together and the wife made no mention that an ICMC court appearance was scheduled. The wife appeared at the court hearing, but never mentioned to John that he had failed to show up, nor did she mention the default hearing date. Nevertheless, John was at risk of having the divorce granted by the court. Lesson learned: Consult with an attorney if you are not sure a legal action has been commenced and open your mail! By contrast, this could not happen if John and his wife had agreed to use a collaborative process for their divorce. In a collaborative process, the parties agree to commence the divorce together by signing a Joint Petition. No service is necessary. Everybody knows what is going on. Everybody participates equally in reaching a settlement before the legal documents are drafted and filed with the court. I have since learned that John appeared in Court at the default hearing. As a result, the Court continued the hearing so that John could participate in the divorce. Whew! That was a close one.
In my Collaborative Divorce practice, I frequently talk to clients about identifying their “interests” in the divorce. This is a difficult concept to understand, but is the key to reaching a resolution in a divorce that meets the needs of all family members. “Interests” are in contrast to “positions” in the divorce. An interest is the motivation or value behind a particular position. An interest is frequently inspirational and may be far broader than a position. A position is a particular outcome. The difference between an interest and a position is frequently illustrated by the following story. Two children were arguing over who would have the last orange in the kitchen. They each took the “position” that the orange should be theirs. Their argument included angry cries of “You had the last orange!” or “I was here first.” Unable to resolve the dispute without resorting to blows, they brought the issue to their mother. The obvious solution is for Mom to slice the orange in half and give each child one-half of the orange. Seems like a good outcome, doesn’t it? But at this suggestion the children were even unhappier. So, instead, she asked each child what he or she wanted to do with the orange. The first child replied, “I want to bake a cake. I need the zest of the orange to add to the batter.” The second child said, “I want to make orange juice.” He needed the juice and the pulp of the orange. Obviously, by understanding the underlying interests of each child, it was determined that both children could get what they wanted—the rind for a cake and the juice for orange juice. In collaborative divorce, this is called a win-win outcome. Win-win outcomes are possible when interests are identified and the interests of all parties are met.