Divorce 101


Divorce 101

“How long will this take?”

“How much will this cost?”

This are the two most common questions I get during a consultation.  My answer to both questions?  “I don’t know.  It depends on you and your spouse.”  Let me explain.

Let’s start at the beginning so that my answer makes sense.  A divorce starts with a Summons and Petition for Dissolution of Marriage.  The Summons is kind of like an announcement which informs the party being served (the respondent) that the petitioner is commencing a divorce, the respondent has 30 days to respond to the Petition or the divorce may go by default, that the divorce may involve real property (i.e., house, cabin), insurance is to remain the same, possessions are not to be sold except by agreement or for the necessities of life, parties may have to use Alternative Dispute Resolution (i.e., mediation), and if there is a dispute over the custody of the children, the parties may have to take a parenting time class.

The Petition is the nuts and bolts of the divorce.  It contains identifying information about the parties, their children, their assets, and their debts.  For instance, the Petition contains the parties’ names, addresses, date of birth, when and where they were married, date of separation, whether they are in the military, whether they have lived in Minnesota a minimum of six months, if they are employed and where, and their approximate income.  The Petition also identifies any minor children, vehicles, retirement accounts, homes, cabins, bank accounts, and debts.  At the end of the Petition, the petition states what she/he is seeking such as a divorce, spousal maintenance, child support, custody of the children, division of assets and debts, and attorney fees.  Each Petition is tailored to the facts of each divorce.

The drafting of the Summons and Petition do not normally take too long; however, the time involved in drafting these documents (meaning attorney fees) can be affected by the client.  If the client does not initially supply all the requisite information and the attorney has to ask and ask again for the information, this increases the attorney fees and the time involved.  Additionally, if the client continuously requests changes to the Petition, that affects the time involved and the attorney fees.  Of course, the client should never not request a necessary change to the Petition to save money.  The Petition should always contain complete and correct information.

Once the Summons and Petition are complete and signed by the client and attorney, then personal service must be done on the respondent.  This can be done in a couple different ways.  Personally, if it appears that the respondent will cooperate, I like to send out the Summons and Petition by mail with an Acknowledgement of Service that the respondent can sign in front of a notary and return to me.  This option of personal service tends to start the divorce in a somewhat amicable way with the hope that the divorce can be at least somewhat harmonious.  Another service option similar to the first is to see if the respondent is willing to stop by my office to pick up the Summons and Petition.  If neither of these options will work (i.e., the parties are separated and not speaking to each other), then a professional process server, the sheriff’s department or an adult friend, relative, co-worker can serve the respondent.  The petitioner cannot do the personal service.  There is a charge for the process server and the sheriff’s department.  If it is difficult to serve the respondent, then that increases the costs and the time involved.  Finally, if the respondent’s location is unknown, service can be done by publication.

It is after the Summons and Petition are served that generally determines how fast a divorce can be done and what the final cost will be.  If the petitioner and respondent are in agreement about the terms of the divorce, then a Stipulation can be drafted, signed, and filed with the Summons and Petition.  If there are not children involved, a hearing is not required (but the judge still has the authority to schedule a hearing if she/he determines one is necessary).  If there are children involved and if either the petitioner or respondent is not represented by an attorney, then a hearing is required.  Once a Stipulation is filed and if no hearing is scheduled, then the divorce could potentially be done usually in three to four weeks depending upon the judge’s schedule and workload.  If a hearing is scheduled, then the hearing is generally scheduled within six to ten weeks after the filing of the Summons and Petition.  Once the hearing has been held, the divorce is usually complete that day or soon thereafter.

If the parties cannot agree on the terms of the divorce, then more time and more attorney fees will occur.  At this point the parties might go through mediation (incurring the costs of the mediator), Discovery is done (the formal exchange of documents), motion for temporary relief (i.e., temporary child support), attend temporary hearings, opt into Early Neutral Evaluation (fees for the evaluations), attend a pre-trial, have a custody evaluation, appraisal and/or vocational evaluation, and more.  Each of these involves time and some involve drafting legal documents, appearances, court hearings, hearing preparation, etc.  This is what drives up the costs of divorces and increases the time to conclude the divorce.  In some circumstances, it is cost effective to incur upfront costs if that means that it may help resolving the divorce.  Ultimately, if the parties cannot agree on all the terms of the divorce, a trial is necessary and a trial is expensive.  In a divorce, if the parties want to avoid the time, expense, and stress of a trial, both parties need to compromise.

“How long will my divorce take?”  It depends on whether you and your spouse can compromise and whether you both can compromise quickly or if it takes the assistance of others (attorneys, mediators, appraisers, judge).

“How much will my divorce cost?”  Ditto to the above.

This blog is based on my experience BUT every divorce is different.  I have represented divorce clients where the parties have already worked out the terms of their divorce and I just make sure the terms are pursuant to statutes and case law, draft all the documents, and (if necessary) appear for a default hearing.  These cases have been done in two to three months and have been inexpensive (in comparison to more extensive cases).  I have also represented divorce clients where the parties do not come to an agreement, it takes well over a year, and we have a trial.  These cases cost thousands of dollars and take a lot of time.  Having a consultation with an attorney helps clients to understand the potential course of their divorce.  No attorney can accurately predict exactly how or when a divorce will resolve nor should this blog be taken as a prediction for any divorce.  Each divorce has a life of its own and only until it is done will anyone know exactly its course.  If you are contemplating a divorce, I advise you to consult with an attorney.

About the author