September 16, 2015

The Collaborative “Team”: The Role of the Court

Categories: Collaborative LawDivorce

488525497-signing-a-contract-gettyimagesAlthough the Court is often silent in a Collaborative Case until the final agreement is filed with the court, we can’t ignore that the way our legislature has crafted it, a divorce must go through the court system and be approved by a judge to be final.

In a Collaborative Case, the documents that will always be filed with the court are a Joint Petition for Dissolution, Confidential Information Form, Certificate of Representation, Default Scheduling Request and Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree of Dissolution (J&D). Additional documents that may be filed include a Summary Real Estate Disposition Judgment (SREDJ), Qualified Domestic Relations Order (QDRO), Certificate of Dissolution, and some other more clerical documents as needed.

The Judgment and Decree of Dissolution (often referred to as “Decree” or “J&D” for short) is a legally binding document that will be rigorously drafted by the attorneys. Some of my clients going through divorce have be surprised at how detailed this document needs to be, and the time that it takes to draft. There are a few reasons for this. One is that it needs to be approved by a judge, which means that it needs to meet the requirements set out by statute for a valid J&D. There are many items that must be in the J&D, even if they are not applicable to the situation at hand, for example whether any female parties are pregnant, whether there are any non-joint children of either party, whether there has ever been an order for protection in effect (see Minn. Stat. 518.10 for Requisites of Petition for Dissolution). Judge’s vary on how strict they adhere to these requirements (for example, some will refuse to sign a J&D which contains an agreement for an amount of child support different from what the statutory calculation would be without including reasons for that deviation; other judge’s will sign that J&D).

A second reason that the J&D will be so rigorously drafted is that it is the memorialization of all agreements that were reached. Although this is a Collaborative Process, the provisions of the J&D will be enforceable by a Court. Worst case scenario, if one party is not following the agreement that was reached, the other party might need to utilize the Court to enforce the J&D. If a provision is not clearly included in that document, neither party is able to enforce it. For example, even if everyone involved understands that certain of the children’s expenses will be shared equally between the parents, it is important to set out how that will occur in the J&D, in the least ambiguous way possible. Investing time on this step can be invaluable later, because we cannot know how circumstances will change, and what will need to be revisited in the J&D.

A third reason that the J&D should be clear on all points is that it can be very difficult to modify portions of a J&D in the future if both parties do not agree (for example on custody and parenting time provisions).

Finally, a person receiving spousal maintenance and or child support can request that the County assist in automatically processing those payments from the obligor’s paycheck. However, the County agency cannot do this if the provisions of the J&D are not clear regarding the terms of these obligations.

Other documents assist with finalizing division of assets. For example, the SREDJ is a document that can be filed with the county recorder’s office to effectuate the transfer of real estate. A QDRO is a document that is sent to the plan administrator of certain retirement plans in order to divide or transfer the balance of the plan without certain penalties.

In many Collaborative cases, the role of the court goes mostly unseen. Documents will only be submitted at the end, when a final agreement has been reached, and no appearance before a judge will be necessary. However, in some cases, the divorcing couple may choose to utilize the services of the Court at various points in the process. For example, maybe there are some initial agreements that they would like made into a temporary order of the court. Or, if the parties reach an impasse on one or more issues, court programs such as an Early Neutral Evaluation (ENE) could be utilized. This is a process in which two neutral evaluators meet with the couple (and typicallly their attorneys), to discuss areas of disagreement and generate options as well as provide insight into what a court might do.

The role of the court in a collaborative case is typically behind the scenes, mainly approving the documents which make the divorce official and bind the parties to their agreements. However, in some instances the couple may choose to use some programs made available by the court if it is the right fit for them.

Anna HagstromABOUT THE AUTHOR
Anna Hagstrom, Attorney and Mediator
Hagstrom Law & Mediation, PLLC

Anna is an attorney and mediator, and founder of Hagstrom Law & Mediation, whose mission is to create peaceful, collaborative resolutions by compassionately guiding people through major life events. She is experienced in alternatives to traditional litigation, and believes it is her role to empower her clients with knowledge and confidence to make educated decisions and move forward. Learn more at www.Hagstrom-Law.com

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