Mediation for Minnesota Elders and Their Families

Rocking GrandmaStatistics show that almost 63% of families give caretaking at some level to an elderly relative or friend.  These are families who provide assistance and care without the aid of any County or State.  The level of care can range from transportation to daily personal care and needs.   What is appropriate in mediation relative to an Elder is organization and care-giving that involves the entire family.  Care-giving doesn’t have to be burdensome for one or two people.

Mediation is an excellent forum for families to sit down together with their Elder and develop a family Elder plan.

Issues for the mediator might include such topics as:  1. Dad/Mom needs to give up driving and he/she won’t listen to us; 2. Dad/Mom need to let one of us help with finances; 3. Dad/Mom need someone to check on him/her on a daily basis; 3. Dad/Mom need a care-giver to come to the house and how can we divide up the tasks and chores as a family; 4. Dad/Mom need a level of care now that requires a professional healthcare worker and how can we find someone and not worry about Dad/Mom’s safety; 5. Are there things we can do around Dad/Mom’s home to keep him/her safe from falls or accidents; 6. Who among us is best situated to provide financial oversight or handle doctor’s appointments; and, so on.

Any family concern or difference of opinion over an Elder’s care can be brought to mediation.   Mediation is the forum to work out Elder issues together as a family while including the Elder.

Mediation is not a forum for the development of an estate plan for the Elder or to strategize for spend-downs for nursing home purposes.  The family should consult an Elder law attorney for the foregoing issues.

If you like this post, I would love it if you would hit the “subscribe” button so that I may continue to share a variety of family law topics with you.  Please do share this post via the share buttons at the bottom of the page. Thanks for reading.

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 

Copyright 2015

 

Your Game Plan for a Minnesota Divorce Mediation.

Yes No

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.

Settlement Outline

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

If you like this post, I would love it if you would hit the “subscribe” button so that I may continue to share a variety of family law topics with you.  Please do share this post via the share buttons at the bottom of the page. Thanks for reading.

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 

Copyright 2015

Protecting Yourself in a Minnesota Divorce Mediation-Information You Should Know.

Green Scales of Justice

With the advent of mediation requirements for Minnesota divorces and Minnesota family law matters some folks are setting themselves up as mediators and are holding themselves out as able to finish up any legal matter including, but not limited to, legal advice and preparation of the final Court documents called pleadings.  These folks advertise that they are “one-stop” shopping for your divorce or legal matter.  Pro se parties are opting to go straight to a mediator  who is a “one-stop” shop and, unfortunately, some of these parties are getting burned.

Mediation is part of the legal process in any Minnesota divorce or other family law matter.  There are steps, however, that must be taken as part of the legal process to finalize the agreements or compromises reached in mediation.

A few ground rules will help you become knowledgeable about mediation, procedure and  lawyers in order to avoid having to duplicate your efforts and costs in any Minnesota divorce or Minnesota family law matter.

1. Mediators may not give either party legal advice even if the mediator is a lawyer. A mediator is a neutral and may not advocate for one party over another.

2. If a mediator writes up a document memorializing your agreements that document is usually not in the proper formal legal form called a pleading that can be filed with the Court.  The signed agreement cannot by itself  be filed with the Court.   A lawyer may be necessary to draft up the proper formal legal pleading and incorporate the agreement into the pleading.  If the divorce or family law matter is not complex, then it may be possible to use the Court forms.   Your legal matter may benefit by having a lawyer advise you and properly draft Court pleadings.  Court forms only allow you to check boxes.

3.  No mediator should be drafting formal legal pleadings.  I’ve had complaints from folks who come to me as an attorney and show me a formal legal pleading like a divorce drafted by a mediator who is not even a lawyer.  That mediator is practicing law without a license. The pleading as drafted is virtually worthless and in some cases legally injurious to one party.  What is done usually cannot be undone if the divorce has already gone through the Court and been signed off as a divorce decree.

Minnesota law doesn’t allow a Minnesota divorcing party to have “do overs” when it comes to division of property like retirements, financial accounts, real property, or personal property, or on a waiver of spousal maintenance or allocation of debt.  The only way a party can re-open a  divorce decree relative to a property distribution  is to substantiate that the other party committed fraud.   There is a procedural deadline for re-opening a case for fraud.  If a spouse enters into a waiver of spousal maintenance under a case named Karon vs. Karon, then that waiver is permanent and the Court cannot even hear arguments about the waiver.

4. A lawyer can only represent one party in a Minnesota family law matter or Minnesota divorce for ethical reasons.  The lawyer cannot ethically legally advise both parties to a legal matter or divorce.

5. If a lawyer has the other party sign a conflict of interests waiver and then waive his or her right to independent counsel, that the lawyer can draft up the pleading.   If the divorce or other family law matter has complex issues or involves retirements, businesses, spousal maintenance, a large debt service load, or real property, then it is beneficial to have your own attorney review any pleading before you sign off.   There are attorneys who offer counsel and advice without requiring a large retainer.  You pay the attorney for only the services you require like a review of documents or pleading.

I still advocate mediation, but everyone needs to be very aware of how to proceed and what a mediator can and cannot do for you.  You can make the best decisions when you have the best information.

If you like this post, I would love it if you would hit the “subscribe” button so that I may continue to share a variety of family law topics with you.  Please do share this post via the share buttons at the bottom of the page. Thanks for reading.

Kate Willmore, Saint Cloud, Minnesota, Divorce, Father’s Rights, Family Lawyer, Family Court Lawyer and Mediator

Call me at (320) 217-6030  or e-mail me.

Copyright 2015

Getting Unstuck in a Minnesota Family Mediation-Considering All Possibilities.

child-and-parentsEvery family is unique.  What you learn on the internet or from friends or family about shared co-parenting or division of assets or debts in a divorce is not necessarily applicable to the facts and circumstances of your family situation.   Accepting all the information that you read or hear about other families without an examination of your own situation  is a way to get stuck in mediation.  Ideas take shape when you get unstuck and open yourself up to all the possibilities that may work for your family in co-parenting, asset and debt division, and financial support.

Mediation is an opportunity to try to resolve a family disagreement by thinking creatively and brainstorming together.   Mediation is a safe environment to consider all avenues and float ideas.   The back and forth process can shape an idea that generates a plan that works specifically for your family.    The old adage “one size doesn’t fit all” applies to mediating issues in a family dispute.  Your family is one of a kind and the resolution that you mediate can be a good fit.

Kate Willmore

Saint Cloud, Minnesota, Divorce,Family Lawyer, Father’s Right’s and Mediator

(320) 217-6030

Copyright 2014

 

Minnesota Family Law Disputes and the Dispute Resolution Provision Requiring Mediation

Yes NoNearly all family division Courts in Minnesota require that disputing parties attempt to mediate and settle their differences.  Divorces and other family law orders routinely include a dispute resolution provision that requires parties mediate before returning to Court.  The order includes what is called the “exhaustion of remedies” provision.  This provision requires that the parties exhaust all efforts to resolve their dispute before returning to Court. The only exception to the exhaustion of remedies provision is an emergency.

Often times pro se parties will file a motion without reading their order for the dispute resolution provision.   They go through the stress and cost of filing a motion when they should have mediated first.  They appear at the hearing only to have the Court tell them to mediate before the Court will consider a motion.

Mediation is a process that takes some time in preparing a case and in the actual mediation.   Organizing your thoughts and concerns as well as drafting up a summary for the mediator will generate a more positive experience.  You may not get everything you want in mediation, but you will:  1. Learn about the other party’s concerns and position; 2. Hear from an experienced mediator/lawyer about the merits of your position; 3. Gather some ideas that you may use in eventually settling the dispute; and, 4. Work cooperatively to try to resolve a dispute instead of turning over the decisions about your family to the Court.

Keep in mind that the Court doesn’t know your family like you and your former spouse do.  Decisions about your family are best made by you and your former spouse.

You will get more out of the mediation process if you don’t wait until the last-minute to mediate just before your hearing date.

Mediating before you file a motion is always the best option.

Kate Willmore

Saint Cloud, Minnesota, Divorce, Family Lawyer,  Father’s Rights, Family Court Lawyer and Mediator

(320) 217-6030

Copyright 2014