There are certain issues that must be cleared up and questions that must be asked of both parties to finalize a divorce proceeding. If these questions are not asked and answered properly, the terms of the divorce may be contested at a future date. While you may ask yourself, “Who would want to go through any part of that again?” you must remember that divorce is not like other areas of the law. Emotions run high sometimes years after a contested divorce, and individuals may have to constantly come into contact with one another, especially when co-parenting children are involved. Therefore, it is best to make sure all loose ends are tied up properly to minimize the likelihood of any future conflict.
The Lawyer’s Role
As an attorney, it is important to not only ask the following questions, but put the questions and answers in writing and on the record (when required) as having been asked and answered. Such questions as whether your client was feeling intimidated, depressed or foggy minded, was under the influence of a controlled substance or alcohol, felt as though he or she had sufficient time to talk with their attorney, understands the agreement, had opportunity to ask any questions, read all the documents presented, and felt the agreement was complete, are essential to helping present the judge with enough detail to show that the client willingly entered into the agreement and understood the terms and conditions of the agreement. Furthermore, unless there truly is fraud or mistake of fact present in the divorce, the documentation of these questions and answers with the Court and proper recording of them will help make sure the divorce decree is final and binding. Not all divorce cases involve a Court hearing. Many uncontested cases are e-filed and signed off by the Court without a hearing.
The Judge’s Role
During the hearing, while it may seem redundant, the judge should be asking again whether the parties understand the agreement, had a chance to discuss, read, and question the agreement, and whether they believe the agreement is fair to both parties. In addition, the judge will ask if the parties understand the implications of the agreement and that it is a binding, enforceable document. Finally, the judge must inform the clients that they are still not divorced until the final papers are submitted to the court and signed by the judge. The re-utterance of these questions and additional explanations are an added benefit to allow the Court to once again record that both parties understand the agreement in which they are entering and its repercussions.
As hard of a truth as it may be, divorce can involve two amazing people at their absolute worst, wearing their emotions on their sleeves. As a result, the ability to think rationally and truly work together for the common good may be overshadowed by feelings of anger, loss and grieving. Therefore, it is essential to make sure everyone involved understands what is occurring and the Court has made a record of this understanding. To learn more about the divorce process in Minnesota, please contact the Family Law attorneys at Lake Harriet Law Office at (612) 750-4843.