If you are on your way to a mediation, then it helps to have a game plan in mind in a Minnesota divorce. You are likely paying for your attorney and half of the mediator’s fees so it makes sense to be ready.
Prepare a settlement outline of your case. A settlement outline articulates what you cannot live without; what you could do without; and what you really don’t want among other references. A settlement outline will help keep you focused as you move through topics that are in dispute.
Your settlement outline should include all the marital and non-martial financial assets with current balances; for example, Mickey Mouse- 401(k) from Disneyland; current balance of $420,000; marital property; Minnie Mouse, Certificates of Deposit, $2200.00, marital property; IRS inherited from Uncle Goofy in 1982; $32,000.00, non-marital, Minnie.
List all the debt for both secured and unsecured obligations. The debt has to be allocated to either you or your spouse. Don’t forget any debt that either of you may have co-signed for like student loans for the college-aged children.
Unsecured debt includes credit cards, student loans, outstanding healthcare bills, tax debt, debts to family members or any other debt that should be addressed and allocated between you and your spouse. Secured debts have a lien on the property. The most common example is a car loan. The bank has a secured interest in the car and if you fail to make the payments, then the bank gets the car back.
Personal property assets are usual household items, vehicles, RV’s, motorcycles, snowmobiles etc…. Prepare a list of items with balances owed on each item, if any. Try to find the used fair market value of these items. For vehicles and other recreational equipment use NADA or Kelly Blue Book. Any household item is valued at a garage sale price and not what you paid for it. You don’t need to list every teacup or fork. It’s enough to identify the big ticket items and group the others; for example, the 4k Sony 60 inch plasma TV; pots and pans and other kitchen cooking items; bedroom set consisting of king size bed, two dressers, and two night stands; and don’t forget to identify your non-marital claims such as Uncle Donald’s handmade duck decoys, Mickey’s, Non-marital.
Develop a custody, parenting plan and schedule. Keep your children’s needs in mind. Custody and parenting time is all about the kids and not about the parents. If you are not represented by an attorney, then go to www.katewillmorelaw downloads and get a PDF copy of my Custody, Parenting Plan, and Parenting Time Worksheet.
Create a budget for yourself and detail all of your expenses and projected expenses. Be realistic and don’t exaggerate. Don’t forget postage, hair-cuts, Christmas gifts, oil changes and all the other monthly or annual expenses that you usually pay. A projected expense might be your cost of single healthcare insurance after your COBRA benefits run out or the cost of moving into an apartment and your deposit monthly rent. Bring evidence of your monthly and annual income such as pay-stubs, wage statements or tax returns.
Have any necessary documentation handy to prove up your settlement position. Be organized.
Tip: Begin a negotiate in an area of dispute where you believe that you and your spouse can agree without much discussion. Get a successful agreement on a few areas before you tackle the difficult areas.
Attitude and Action
Be polite. Don’t lose your cool. Listen carefully. Ask questions and follow-up questions. Ask for clarification if you don’t understand. Don’t bid against yourself. Don’t start at the bottom of your offer and negotiate up; start high and negotiation down.
Keep track on paper of your offers and your spouse’s counter-offers and so on. If you come to an agreement on a particular issue, then write the terms and conditions of that particular settlement area down and clarify the settlement with the mediator and your spouse.
If you cannot reach on everything it’s possible to break up the settlement into little pieces and settle what you can. You can always come back into mediation for another session or two.
Be imaginative and think creatively. Don’t close your mind to what the other side may be proposing because it sounds different from your neighbor’s or your sister’s divorce.
Don’t let your ego get in the way. For example, don’t argue over the Superior Lake Agate or the sand in the children’s sandbox or the $25 tropical fish or the cross made from railroad spikes. You can spend a lot of time and money arguing over little stuff if your ego is involved and you just “won’t give it to her or him.”
Do a cost benefit analysis. Estimate your costs of continuing to mediate or your costs of going to trial on a particular issue before you say no to any reasonable compromise. There is a financial cost to trial and an emotional cost of going to trial. When you go to trial you give up decision-making to a court who doesn’t know your family.
Bring some snacks to avoid hunger pangs and low blood sugar. Be ready to order out lunch or break for lunch and return. Get up and stretch. Mediation is emotionally and physically stressful like a marathon run.
Your Bottom Line
You want to settle the case. Be realistic in electing where and when you will say: “No. I don’t believe I can go any further.” Remember that you can always mediate another session.
Binding Settlement Agreement
There is no settlement until both parties ( and their attorneys, if any) sign a binding settlement agreement. Mediators cannot give legal advice and shouldn’t be drafting formal court pleadings. A mediator can, however, draft a binding settlement agreement with settlement talking points. Certain specific language must be included in a binding settlement agreement for the agreement to be enforceable in court if either party backs out.
If you are not represented by counsel, however, I think the best practice is not to sign any binding settlement agreement or formal court pleading agreement until you have your family law attorney review the document. Ask for your attorney’s counsel and advice on your legal rights and obligations under the agreement. Your spouse’s attorney cannot give you legal advice and represents only your spouse.
Minnesota Divorce Formal Court Pleading
You have a settlement – now what? The settlement must be set out in the Minnesota divorce formal court pleading called the “Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree.” Minnesota divorce law requires that certain language is contained in a Minnesota divorce decree. The decree must also address all unique issues of fact in your divorce.
Formal court pleadings should be drafted by a Minnesota family lawyer. There are certain safeguards that protect you in terms of real estate transfers or debt allocation or retirement division. As a pro se litigant you would not be aware of the particular language. If you’ve come this far don’t fall short on the proper drafting. If there are retirement assets to be divided that entails a follow-up order called a qualified domestic relations order and the Minnesota divorce decree has to contain particular language relative to a division of retirement.
I am not a fan of the check the box divorce if you have assets and other property division and allocations. You can, however, use the forms at Minnesota Judicial Branch website if you are so inclined. The form for a Minnesota divorce has so many boxes and printed paragraphs that it is easy to check a wrong box or forget to include an important topic or check an important box. If you use these forms you might consider a document review by a family law attorney. An attorney can add particular language to the form via attachments that protect your interests.
There are Minnesota family law attorneys who will offer services as needed on a pay-as-you go basis
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Kate Willmore, Saint Cloud, Minnesota, Divorce, Father’s Rights, Mother’s Rights, Family Lawyer, Family Court Lawyer and Mediator
Call me at (320) 492-3606 or e-mail me. www.katewillmorelaw.com www.katewillmorelawblog.com