Divorce Retainer in Minnesota

Minnesota Divorce Retainers
Retainers can be a large up front cost

When you’re thinking about divorce expenses or looking to hire a divorce attorney, it’s important that you take into consideration a divorce retainer and understand retainer fee agreements. If you’ve never hired a lawyer before, you may be wondering, “What’s a Retainer?” This article explains what a retainer is, how a retainer works in divorce and family law cases, and what you need to know before signing one.

Legal Retainer Definition

A retainer (also sometimes referred to as a, retainer fee) is a good-faith, advance payment made to a lawyer for legal services. The retainer can be a single advance payment or reoccurring, depending on your situation. (We’ll talk more about single vs. reoccurring payments later in the article).

Retainer Purpose

In addition to signing an engagement letter (or representation contract), the retainer establishes a client-attorney relationship between the individual and the lawyer. Without the retainer, an attorney will not work on your divorce or family law case, provide legal advice or representation. Thus, the retainer provides the individual with legal services and ensures that the attorney will be paid for such services. 

How Does a Retainer Work?

First, the retainer is typically collected during the intake appointment with the attorney. There are a number of different payment methods available to you. Learn about the different retainer payment options by reading: How to Pay for a Divorce Lawyer. Additionally, in some cases, your spouse can be ordered to pay your attorney fees. To learn more about when you can don’t have to pay attorney fees, read: Attorney Fees

After intake, the lawyer puts the retainer into a separate trust account for the client. The retainer belongs to the client. No money from the retainer can be collected by the attorney unless it has been earned.

Then, as the lawyer works on the divorce or family law case, s/he charges the client for legal services provided. The client pays for such legal services with the retainer (the money in the trust account). As services are rendered, the lawyer withdraws money from the retainer for payment. Once earned, money from the retainer is deposited into the firm’s account and no longer belongs to the client. Any unearned portion of the retainer is returned back to the client. (We’ll talk more about retainer refunds later in the article).

Divorce Retainer: How it Works

Typically, divorce and family law attorneys in Minnesota require an initial retainer somewhere between $3,000 – $5,000 and charge on an hourly rate basis. Minnesota laws, specifically Minnesota’s Rules of Professional Conduct Regarding Fees, guide what attorneys can charge, when they can charge, how they can charge and their responsibilities to the client-attorney relationship.

For example, in Minnesota, it’s illegal for an attorney to charge contingency fees in family law matters. However, Minnesota divorce and family law attorneys can legally seek reimbursement from the client for in-house costs and materials, like: paper; printing; coping; telephone charges; postage; etc…

TIP: In-house costs quickly add up and can exceed people’s expectations. Therefore, it’s important that you ask the attorney how additional case costs and expenses are handled. For example, at Majeski Law, we do not charge the client separately for such in-house expenses listed above.

Initial Retainer vs. Replenishing Retainer Fees

The initial retainer is the amount your divorce or family law attorney believes is reasonably necessary to start working on your case. As your case proceeds, you may need to replenish your initial retainer to continue working with the attorney.

Thus, the initial retainer may cover all legal services during your divorce or family law case or you may have reoccurring retainer fees. Whether you’ll have a single retainer fee or reoccurring retainer fees will depend mostly on you, your attorney and the specifics of your case. (We’ll talk more about replenishing the retainer later in this article).

TIP: Don’t be afraid to bring up money concerns with your divorce or family law attorney. In fact, it’s best to address any financial issues right away with your attorney. Generally, the more you, as the client, do yourself, the more money you can save. Therefore, it can be helpful to identify tasks that you can do yourself, and tasks that you will need an attorney to complete for you.

Retainer versus Additional Expenses

Typically, the retainer is only used to pay attorney fees. However, you’ll have additional case expenses, such as court filing fees. Court fees are set by the court, collected by the court, and paid to the court. You pay court fees regardless of whether you have an attorney or not as they are mandatory in the state of Minnesota. For example, it costs about $400 to file for divorce in Minnesota.

In addition, during your divorce or family law case, you may acquire additional services from a third party, such as a mediator, custody evaluator or a property appraiser. Like court fees, your attorney has nothing to do with third party fees, and retainer funds are not used to pay such third party fees. Instead, payment for services from a third party should be arranged between the third party and the client, directly.

An attorney may be willing to use money from the retainer to pay a court filing or process server fee on your behalf, but those tend to be the only (and rare) exceptions. If retainer money is used to pay a court or process server fee, the firm can provide you with a court and/or process server receipt. In addition, best practice would also be to have such items and services clearly accounted for on the firm’s invoice.

Thus, the retainer does not cover your divorce or family law case expenses. Instead, the retainer is only for attorney fees. We stress this point, because some individuals mistakenly take the initial retainer fee to be the total cost of their divorce or family law case.

Although attorney fees (and thus, the retainer) impact the total cost, they’re not the only expenses in a divorce or family law case. Instead, how much your divorce or family law case will cost, will depend upon your specific situation and several different factors. Therefore, it’s best if you can budget accordingly.

Minnesota Divorce Retainers

Retainer and Retainer Fee Agreement

The terms of your engagement letter or representation contract with your attorney should include a section regarding the retainer fee agreement. The retainer fee agreement or retainer agreement you make with your lawyer should not only be in writing, but should clearly state the firm’s procedures and policies regarding the following: Retainer amount; Hourly rates; Services provided; Scope of representation; etc…

Divorce Retainer and Accounting Practices

In addition, your lawyer should provide you with a regular invoice. A good invoice shows you what services were provided, who completed the work (such as, an attorney or a paralegal), and the amount withdrawn from the retainer.

Best practice would be that you receive a monthly invoice, unless no services were provided that month. In that case, depending on the firm, you may or may not receive an invoice that month. The firm’s accounting and invoice practices should also be explained and stated in writing in the retainer agreement.

Retainer Fee, Replenishing the Retainer and Legal Representation

As mentioned earlier, you may need to replenish the retainer. Some divorce and family law attorneys require the retainer to be replenished to the initial amount, while others require a larger or smaller amount. Inability to replenish the retainer usually results in the divorce or family law attorney withdrawing from the case. In that instance, the client would either need to represent him/herself in the divorce or family law matter or seek services from a free legal clinic. Again, the firm’s policy regarding representation and retainer replenishment should be clearly explained and stated in writing in the retainer agreement.

Divorce Retainer Refund

Once your case is completed and closed with the firm, you should receive your last invoice. At this time, you may still have money left in your retainer. As previously mentioned, the retainer money belongs to the client, until it’s earned. Therefore, any unearned portion of the retainer belongs to the client and must be returned.

In addition, you, the client, may fire your divorce or family law attorney at any time. Similarly, whatever balance is left in your retainer after closing out your case, would be returned to you. Therefore, whether you end up receiving money back, depends on the remaining balance of your retainer when your case is closed (regardless of whether your case is finished or because you fired your attorney).

Minnesota Divorce Retainers

Because the retainer money belongs to the client until earned and the client is not receiving the entire retainer fee, it’s not truly a retainer refund. It’s actually more accurate to call it an unearned retainer return.

However, because “unearned retainer return” is not commonly used or searched for by the public, “retainer refund” is used, and refers to the remaining (unearned) portion of the retainer that gets returned back to the client. Again, we emphasize that the client only receives the unearned portion of the divorce retainer at the end of the case.

Divorce Retainer Summary

  • The retainer is money that you designate up front to your lawyer to be used to pay for services provided during your divorce or family law case.
  • The retainer is put into a trust account and belongs to you. No money is collected from the retainer until it’s earned by the attorney.
  • As services are rendered, money from the retainer is paid to the firm. Once collected by the firm, that money no longer belongs to the client.
  • Depending on your case, you may need to replenish the initial retainer. Inability to pay for services, by not replenishing the retainer, dissolves the client-attorney relationship, legal representation and all legal services.
  • At any time in your case, you can decide to represent yourself or fire your current attorney and hire another attorney. At this time, the remaining balance would be returned back to you. Otherwise, any remaining balance is returned back to you at the end of your divorce or family law case.
  • It’s very important that you read the retainer fee agreement carefully to make sure that the firm’s policies and procedures are stated in writing and that you have a complete understanding before signing the contract.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

Insulting the Other Parent in Divorce and Custody Cases

Angry parents insulting each other
Insulting the other parent or arguing in front of the kids can be harmful.

Insulting the other parent in a divorce or custody case can be tempting.  He or she may have done things you dislike or downright find detestable.

Hurling insults or talking about how bad the other parent is may make a parent feel better.  However, it’s rarely useful or positive to do that in a divorce or custody situation.

Along these lines, the following was written by Judge Michael Haas after 25 years on the bench in Cass County, Minnesota.  He retired in 2002, however his advice to parents in Minnesota divorce and child custody cases remains as profound as it was years ago.

The Judge’s Letter to Divorcing Parents

“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party—or what your family thinks of the other party—these children are one-half of each of yours. Remember that, because every time you tell your child what an “idiot” his father is, or what a “fool” his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”

Insulting the Other Parent in Divorce and Child Custody Situations

Putting the best interests of your children first is hopefully what drives anyone in a child custody or divorce proceeding.  If that’s not enough, there are also practical reasons in the context of a divorce case to be as honorable as you can.

The inability to get along with the other parent can reflect badly on your character in the eyes of the judicial officer and make him or her question your ability to be a mature and positive role model for your children.

In addition, putting down the other parent can show the judicial officer that you are not willing and/or able to put the interests of your child ahead of your own feelings towards the other parent.

Judges have a great deal of experience with family law situations.  They are able to get to figure out if one parent is truly bad for the child.  Bad mouthing the other parent, particularly in front of the children, is not well regarded.

In sum, insulting the other parent in a divorce or custody case is a bad idea.  It’s bad for the children.  It can reflect badly on the insulting parent.  Lastly, it has no value strategically.  It’s ok to talk about concerns you have about the other parent.  However, crossing the line into insulting or demeaning behavior is never good.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

Can I Get an Annulment in Minnesota?

Annulment is for invalid marriages
Annulments are for invalid marriages

Can someone get an annulment in Minnesota?  The short answer is probably “no”.  Unfortunately, there are many popular misconceptions about annulments.  In particular, some believe that annulment is simply a convenient, low-cost alternative to divorce.  In reality, this is simply not the case.

Divorce vs. Annulment in Minnesota

A divorce is different from an annulment. 

  • A divorce is the legalized end of a valid marriage. 
  • An annulment is a legal recognition that the marriage had some deficiency from the start.  Therefore, this is not recognized as a marriage from the start. 

The reality is, in Minnesota there are only a few narrow circumstances for an annulment.  There are two types of situation in which an annulment may apply.  They are “void” marriages and “voidable” marriages.

Void vs. Voidable Marriages

Void marriages refer to marriages that were never and can never be valid as a matter of law.  These fall into two types:

  • Marriages with close blood relatives
  • Marriages when one party was still previously married

Most frequently this question arises in the second situation.  Specifically, a later spouse discovers that his or her partner was married previously and had never been legally divorced. 

In this situation, the latter marriage is automatically invalid in Minnesota.  The solution: The married party legally divorces their first spouse.  Then he or she remarries the new partner.

Voidable marriages are allowed to continue, despite their deficiency, unless one party or the other challenges the marriage in a timely manner based on the deficiency.  Voidable marriages in Minnesota include:

  • At least one party was underage (less than 18)
  • One party was not able to consummate the marriage and the other party did not know of this at the time of marriage or
  • One party lacked capacity due to any of:
    • Incapacity due to being under the influence of drugs or alcohol
    • Mental incapacity
    • One party committed fraud or used force to compel the marriage

Annulment Doesn’t Usually Apply to Marriages

Most reasons for dissolving a marriage, like financial struggles, infidelity, disagreements regarding child care, or abuse don’t satisfy the annulment criteria.  This is why divorce, not annulment, is almost always the necessary course of action if one party wants to end a marriage.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

Helping Children in a Divorce

Helping children in a divorce
Helping a child in a divorce is usually needed

A divorce is a significant loss to many spouse enduring it.  However, even more so divorces can affect the well-being, psychological health, and emotional development of the children involved. Helping children in a divorce can be critical.  The following are some ways in which parents can help minimize the negative effect divorce can have on their children.

Distinguish the Parent/Parent and Parent/Child Relationships

Remind the child that it’s not their fault.  Highlight the difference between the relationship between both parents and the relationship each parent has with the child. 

On a related note, continue to maintain an active and positive parent/child relationship after the divorce.  A child still needs this from both parents, even after a divorce. Emphasize that both parents will continue to love and care for the child.

Helping Children in a Divorce: Keep Conflict to a Minimum 

This may be the most important predictor of eventual outcome for the children.  Yes in many cases there are bitter, unresolved feelings between the parents.  These feelings often make it easy to fall into the trap of lashing out at the other parent or speaking badly of the other parent.  This is particularly harmful if it’s done in front of the child.  Helping children in a divorce can sometimes mean knowing when to stay silent.

Often, a divorce resolved through alternative dispute resolution, like mediation, and coupled with a parenting plan agreement made by both parents can help reduce the sense of anger and “loss” associated with a full-blown divorce trial.  This can help the parents avoid much of the anger and resentment and make it easier to be at least civil with the other parent.   These alternative methods to trial are highly recommended in most cases.

Helping Children in a Divorce: Stand United

Remember, parenting doesn’t end with the divorce.  In many children’s eyes their mother and father are a cohesive unit who they refer to as “my parents”, not necessarily “my mom” and “my dad”. 

Imagine the difficult choices a child may face if placed in a situation in which the child is keenly aware of the anger between both parents.  The child may often be worried about showing preference for one parent by showing affection to one first or more often.  Children should never have to make those choices.  Helping children in a divorce involves working with the other parent.

Communicate Openly and Directly with the Other Parent

Parents should negotiate with each other regarding how they will resolve any parental disputes in the future.  This may involve some form of direct negotiation or alternative dispute resolution.  Generally, unless a child is endangered, going back to court should be a last resort of the parties.

In addition, communication should be direct between the parents whenever possible (situations with domestic abuse would be the notable exception).  Children should not be used as shuttle messengers between the parents.

Remember, you never stop being a parent.  A child deserves the best efforts of both parents to help them develop into an emotionally health and happy adult.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

Divorces and Facebook

Facebook on Mobile
Facebook and Divorce don’t mix

Divorce Drama and Facebook

Social Media, and Facebook in particular, has changed the way we communicate.  The term “Facebook Drama” has entered our modern language and become synonymous with contentious presentation of information over the Facebook website.  For this reason, divorce and Facebook can be a bad combination.

The implications of a simple relationship status change from “in a relationship” or “married” to “single” can send digital shockwaves across a social group.

A divorce can be the most contentious and dramatic event that someone may experience.  It may seem natural to talk about, complain, vent, or bad mouth the other side through what’s become a normal communication channel in our society.  This is never a good idea.

Interesting Article on the Use of Social Media in Divorce Cases

This article on Social Times does a great job laying out how social media can be used in divorce cases: Social Media and Divorce

The article identifies four major areas that social media information has been used in family law and divorce cases:

  • A person’s state of mind
  • Evidence of communication
  • Evidence of time and place
  • Evidence of actions

You can imagine how differently some people would talk or behave in these situations if they knew that what they’re posting could be evaluated in the above way.

Some may be thinking: “They can’t do that.”  Oh yes, they can.  There is no “reasonable expectation of privacy” on social media, like there is with other activities in your home.  In other words, a judge may order you to produce passwords and anything else needed to access your accounts and what you’ve written.  The information on your social media pages is treated the same as other, more traditional forms of evidence.

What to Remember with Social Media and Family Cases

The take away message: Anything placed on any social media, whether it be Facebook, Twitter, or any other outlet is easily accessible.  This includes people who may work against your interests.  Social media information is admissible evidence in Court.

Never say anything related to a family case or an anticipated case, divorce or otherwise on any social media outlet.  You can only potentially be giving the other side information which could be used as evidence against you.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

I’ve Been Served With Divorce Papers

Served with Divorce Papers
Divorce papers sometimes request your signature

Divorce Service in Minnesota

Have you been served with divorce papers?  It’s an awful feeling, especially if it’s unexpected.  A sheriff or random stranger comes up and calls you by name.  You respond, only to be handed an unfamiliar pack of papers. 

Inside, one says the court is giving you notice that a divorce proceeding has been started.  The second shows a laundry list of facts your spouse are claiming as true, even though you strongly disagree.  It then shows everything your spouse is asking the court to do, including divorcing you, getting your children, and getting your property.

The most important thing to do is keep yourself calm.  Carefully read over the paperwork.  You are given a period of time, in Minnesota it’s 30 days, to formally respond.  Keep in mind, in Minnesota you generally can’t stop a divorce.  If one party wants one, he or she is going to get it.  At this point, you’ve got two options.

Served with Divorce Papers: Defend Yourself

Your first is to try to go it alone.  If there are no children involved, not a lot of assets or debt, and you feel like you and your spouse can be agreeable, this can make a lot of sense.  You can keep your costs relatively low, make the process go more quickly, and hopefully easily move on with both of your lives.  

However, often there’s a lot more at stake.  You love your children and the idea of them not living with you or you not being able to make decisions for them is a scary proposition. 

In addition, especially if you’ve been married for a long time there often will be significant property (and possibly debt) accumulated during the marriage.  You want to protect your rights to the property and not to take on more than your fair share of any marital debt.

A Divorce Lawyer Helps Level the Playing Field

As a general rule, the more issues at stake, the more complex the case, and if your spouse has an attorney (you’ll know from the original service paperwork), you will want to strongly consider getting a family law attorney to help you. 

If your spouse is working with an attorney and you are not, you will effectively be handicapped during all of the proceedings and when attempting to assert your rights.  Judges are not allowed to take sides to help level the playing field.  It is very possible you will not walk away with a fair shake.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Court rules, please click here.

Mediation in Family Law in Minnesota

What Mediation in Family Law Is

Mediation in family law involves both parties, like a divorcing husband and wife, meeting with a neutral 3rd party.  This neutral 3rd party, is a person called a mediator.  The mediator will try to help clarify the issues, facilitate communication between the parties, and help the parties reach an agreement on their own terms.

The mediator does not take sides.  The mediator does not make the agreement for the parties.  Lastly, the mediator does not have any decision-making authority like a judge does.

Along these lines, the parties don’t have to agree to anything if they don’t feel comfortable with it.

 Advantages of Mediation

First and foremost, when the parties reach complete agreement in the mediation, they may then proceed to end the case.  Any agreement the parties reach will go before a judge and generally will become a court order.  This ultimately saves the parties time, money, and more emotional distress that comes with a long, drawn out trial.

In addition, the mediation process manages risk and gives the parties control of the process.  If the parties don’t agree, a judge will ultimately decide the issues.  This could leave either party in much worse a spot than had they reached a settlement agreement.

Finally, in family law situations which involve children, research has shown that children tend to be better adjusted later on when their parents can work together and reach an agreement themselves.

Mediation is an excellent option for parties in different family law situations, including divorces, child custody cases, and alimony situations.  It’s so potentially valuable that in some cases, the parties may be ordered by a judge to participate in mediation to at least try to resolve their disputes with minimal court involvement.  Mediation in family law cases should almost always be at least considered.