In this episode, Barry Rosenzweig explores the subject of family law with Jolene D. Vicchiollo of Baker Vicchiollo Law Firm. This is episode two of three episodes on this subject.
Barry Rosenzweig can be reached at [email protected] Jolene D. Vicchiollo can be reached at [email protected]
Divorce custody, paternity alimony, these are all emotionally charged and complicated concepts that arise and family law, which is the subject of today's show part two of three episodes.
Welcome to the Barry law legal podcast. Barry Rosenzweig has been an attorney for over 25 years and is nationally known as a visionary in his profession. In each episode, attorney Barry Rosenzweig, interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. So, get ready or an educational and exciting episode. Now here's your host, Barry Rosenzweig.
Barry Rosenzweig: We're in the studio today with Jolene D Vicchiollo. And we are talking about family law, let's talk about some alternatives to a straight divorce or court or lawsuits back and forth. They've created, the courts have created a lot of alternatives that help these matters for less money and faster correct. You want to talk a little about those.
Jolene Vicchiollo: And I think what you're referring to is something that we call the ENE process. It's an evaluative, neutral process. And when you are in the process, you might think it looks like mediation. The difference is that it's under the kind of the auspices of the courts, and they will order you into what we call an FNE, which is a financial neutral evaluation. And the East stands for early. So, you do it early on in the case. So, it's not dragged out or what we call an SNE, a social early neutral evaluation. And you have to check in with the court, how you're doing. You have 60 days. The attorneys pick the providers. You know, I have a shortlist of people who are very good at getting cases settled. And then you are, there's a series of settlement meetings, sometimes financial. Now in the financial early neutral evaluations there's typically one person, frequently a very seasoned family law attorney, or sometimes a CPA who works in the divorcing world. Because if you have a complicated marital estate, you might want to have a CPA as your neutral to help you settle. So that's one way. In the SNE, the social that's about custody and parenting time, and you have one male evaluator and one female evaluator, so that there's not gender bias.
Barry Rosenzweig: What are their credentials?
Jolene Vicchiollo: Well, usually what I like to do, and it's become, I think most attorneys do is you pick one of the neutrals is a mental health professional, like a child psychologist. And another is an attorney so that you have the balance of one of the evaluators knows the law. So, if the mental health professionals not aware, the family law attorney can say, ah, no, it can't do that. Or that's, you know, I don't think that's, you know, reasonable, but then the mental health provider can say, look to develop mentally, a kid that age can't handle it, you know, so they can kind of give you feedback. And so, it's a series typically of settlement meetings. And the difference in mediation is that these evaluators are allowed to give feedback. Look, if you go to court, this is what I think your judge will do. And so it's extremely helpful because if I would make the same suggestion, the other side might go, no, no, no, no. Oh, you know, you're just more distrustful of the other persons Parties or usually distrustful with the other person's attorney just by the nature of...
Barry Rosenzweig: So, it's based on their experience, it's sort of predictive of what [03:36 inaudible] may be. It doesn't necessarily mean that will be the outcome, of course, but it gives you a based on their experience, what will happen.
Jolene Vicchiollo: And I have just seen since this program, and it's been, you know, I want to say 15 years, it could be long who knows, but at least 15 years, these programs that started in Hennepin County and the number of cases that settle has just increased substantially with, it's a great program and you get to, yeah, you get to pick your provider. So, I know who I like who, you know, does good work and that sort of thing.
Barry Rosenzweig: Is that the same thing as collaborative law or is that different?
Jolene Vicchiollo: That is entirely different. Collaborative law was started, I don't know, about 25, 30 years ago by a family law practitioner by the name of Stu Web. And he was just kind of worn out with the whole you know, custody battles and, you know, fights that people were having in the harm to the kids. And so, he started a process whereby the parties at the beginning of the case, sign a contract that they will not go to court. And so, they hire professionals, they have attorneys, they hire financial neutrals that work in the divorcing world.
Barry Rosenzweig: Did they do that through you as an attorney. So, each party still has an attorney.
Jolene Vicchiollo: Each party typically. I mean, there have been in cases now and again where one doesn't, but in a true collaborative case the parties say we're not going to go to court and they'll hire sometimes there's a whole team of professionals. A child's, like a child psychologist, a financial expert. If there are mental health issues, sometimes a coach to help them, you know, offline away from the meetings. And so again, it's a series of settlement meetings and the hope is at the end of the day, what will happen is they'll come to an agreement that can just be sent into the court. And because they're both represented, there doesn't need to be any court appearances. And the theory behind that is you know; you want to kind of keep more control of your case. You still have professionals who are giving you advice and helping you. But you don't have the threat of kind of court hanging over you and some people really like that, that makes them feel more secure and able to negotiate.
Barry Rosenzweig: Does it work across the board? It doesn't. So, is it based on certain cases or?
Jolene Vicchiollo: By facts. If I have someone who and I practice collaborative law, I litigate, I have many more litigated cases, but I do have collaborative cases as well. And what happens is if a person comes in and says, I want to do this case collaboratively within that process. And it's just a, it's a method of settling a case right outside of the, what we call litigated, which isn't as scary as it sounds. But I will look for red flags because in the collaborative process, you have to be transparent. In the litigated process, if someone is refusing to give me documents, I can issue a subpoena. I can do what we call formal discovery, where the other party has to answer questions under oath. So, I know that I can get the information. In the collaborative process It's based on trust that each party will fully disclose assets. So, if someone comes into me and says, she always, she hides money, she's got secret account. You know that, and then I’ll say, Oh, this isn't a good match for collaborative because she might not be transparent. And you have to have that level of transparency in collaborative. It's, you know, it's a great process.
Barry Rosenzweig: Is it more where they're amicable to the [07:03 inaudible] and they're not contentious. They don't want to hurt the other party. They want some money.
Jolene Vicchiollo: Right. They want to be more careful about it. They still can be tense, right? Because the parties are divorcing. But a really good financial neutral often helps the collaborative case in go smoothly. So, as I said, it's a, it's a way it's a method of selling a case and they can be highly successful. There's some criticism of it, which I think is valid in that if you don't reach an agreement, the parties, the attorneys need to withdraw and start from scratch. So, they have to get new attorneys. And I believe the theory behind that is, you know, if you're committed to this process and we're not going to dink around with it, you're not going to like, see, could I get a better deal here or a better deal here. This is the method you've chosen. We're committed to it. We're going to get this figured out. So, it's, that was part of when Stu web created it. That was part of the thought behind it.
Barry Rosenzweig: Let me go back on something that you mentioned earlier about child support and County services. How does that all connect? So if you know about child support and how do they get involved, and if somebody doesn't pay, actually, you know, what happens situation where they don't pay and do they ever people ever go to jail because they're not making payments and how often does that happen?
Jolene Vicchiollo: The judge has the authority to put somebody in jail. You don't see it very often for not paying child support. So, what happens is there'll be a court order saying you owe X amount of dollars for child support per month. And let's say someone doesn't pay. And let's say someone doesn't pay because he or she has lost their job. So, what they'll do is they'll, they can bring a motion to say, can you reduce my child support till I get work again? So that's kind of one way that people can change child support, but when they just outright don't pay. The, the obligee, the person receiving the child support can sign up for what we call 4D services. And that's a federal code. That's why you call it 4D that they are entitled to have the County collect the child support on their behalf so that the County can collect daycare, can collect what we call basic child support and then medical as well.
Barry Rosenzweig: Collected from.
Jolene Vicchiollo: From the obligor.
Barry Rosenzweig: What if they don't have a job. They have no money.
Jolene Vicchiollo: The arrears are piling up. And so, what happens is that for a period of time that's when the person, the payer has to go to court and say, look, I lost my job. I want it reduced, you know, and the court will say, okay, but we have an expected, we'll set it on for a review hearing in three months we'll see how you're doing with your job search that sort of thing. Most people, I have a case right now where our client lost his job, and we negotiated a downward deviation from what he was paying until he found work. So, we were able to get that worked out, but the County can collect it. Some of the things that they can do is they can, they can suspend a driver's license.
Barry Rosenzweig: Does that happened very often.
Jolene Vicchiollo: Yeah. That happens really often.
Barry Rosenzweig: Do they have to do the spouse is supposed to receiving child support. Do they have to do something to have that happen?
Jolene Vicchiollo: Yeah. They have to contact the County. Well, if they've already signed up for 4D services, then the county's managing that. Right. So, they have to be signed up for those 4D services to be able to have the County collect.
Barry Rosenzweig: Is that something that County will take on their own as far as getting their license revoked.
Jolene Vicchiollo: Yeah, the County does all that. Well, be in touch with the County attorney working on the case about things. But I think most common is you'll see a driver's license suspended, or sometimes I’ll have a potential client that comes in and says, my driver's license got suspended because I'm not paying support, but I haven't worked for six months. Well, you got to tell someone, you know what I mean? You have to tell someone so that you can fix that.
Barry Rosenzweig: So, getting ahead of it obviously is important.
Jolene Vicchiollo: Interesting enough I just saw this past week there was a Minnesota Supreme court reinstatement of attorney whose license had been suspended for non-payment of child support.
Barry Rosenzweig: Are they a family law attorney?
Jolene Vicchiollo: I didn't recognize the name. But the person, the obligor had shown that his arrears are all taken care of and I thought, wow, that's a pretty extreme step. I don't know how much of the arrears were. I don’t know, you know, the details. It just said that he had been reinstated after being administratively suspended for not paying child support.
Barry Rosenzweig: Let's talk about this and maybe a touchy subject, costs for the attorney. What do people do when they can't afford an attorney? You know, what routes do they go? I mean, can you do on a contingency? Can you, is it hourly? Is there a flat rate? I mean, kind of explain that process.
Jolene Vicchiollo: Family law attorneys aren't allowed to do cases on a contingency basis. So most often there we do hourly. We require a retainer upfront and that will cover, you know, so many hours to kind of secure services. And people often say to me, well, how much is this going to cost? So what I like to tell them is I don't want to give them a number because if I say five grand and it's six, then they're like, well, you know, you don't want to give them misinformation. So, I’ll tell them here's my hourly rate. And here's how much this time this will take. So, if we have two settlement meetings and they're four hours each, right, so take four hour or eight hours times my hourly rate, you know, then there's going to be the gathering of documents. You know, we need to have your 401k statements. We need to, you know, gathering the financial.
Barry Rosenzweig: It is kind of like an estimate.
Jolene Vicchiollo: Yeah. Right. So, I try and give estimates of time, if a case is going to go to trial, then all bets. I mean, that's tens of thousands of dollars. And the reason for that is because it's so labor intensive, not only do you have your days of trial, right. You have 10-hour days, you know but the prep is to get your exhibit books to make copies of documents. It's very, very time consuming. So that's where the costs, you know, are not only the time of the attorney, but preparing for trial.
Barry Rosenzweig: And that's why a lot of these cases are going towards the alternative methods.
Jolene Vicchiollo: Right, right. And most cases settle. I think, you know, 95% of cases, they say settle. Sometimes they settle early. Sometimes they settle. There's a process called a moderated settlement conference. And again, that looks like what people would think of mediation. And its once trial has been set and it takes place at the courthouse, whether in Hennepin County, the family justice center or Carver County, you know, wherever it might be. And the neutral comes to the courthouse and the two parties and the two attorneys work all day to try and settle the case. And the difference is that you have this trial hanging over your head and you don't want to have to pay attorneys to get ready for it. So, there's like this, it's not, it's different than the beginning where like, let's see, you know, that sort of thing by now. They're like, Oh, I don't want to go to trial. I don't want to take a chance. And so those are really, they're very successful. I enjoy doing moderated settlement conferences.
Barry Rosenzweig: Well, I think in all areas of law, settlements are very, are better for all parties.
Jolene Vicchiollo: Way better. Yes. Much better.
Barry Rosenzweig: And you know, I see settlements as being where a good settlement is where both parties don't think they got the greatest deal. Because if one party thinks they got a great deal and the other party, doesn't, that's not a great settlement. But both parties feel like a little pain but feel glad to be finished with it. That tends to go a long way towards them agreeing to it.
Jolene Vicchiollo: And I’ve heard judges many times say exactly that, right. It's a good settlement If you both feel like, you know, it's not perfect.
Barry Rosenzweig: Right. I mean, it's your job to guide them in the right direction and give them, you know, the best advice you can. But sometimes they'll say, you know, I don't agree and that's their choice. It's always their choice. Right.
Jolene Vicchiollo: Always their choice.
Barry Rosenzweig: And how often does a judge sort of, you mentioned a little bit about this, but how much do they force a settlement or do they ever give predictive you know, issues about how they're going to, you know, sway the case just a little bit to the attorneys at least.
Jolene Vicchiollo: Yes. And so, prior to trial, there's a settlement conference or something that's called a pre-trial, it's different. It's not the same thing as a moderated settlement conferences right before trial, but in a pretrial, everybody goes to the courthouse and they flush out what are the issues. What can we agree on, what we can't agree on? And so, it's not uncommon for the attorney to go back and chambers and say, this is what we're stuck on. Right here the issue is this or that. And giving information to the judge, you have to be careful. The judge is the finder of fact, right? So, he, or she can't really say, this is exactly what I would do. But sometimes the judge will be really helpful in saying, you know, I just don't see this as a spousal maintenance case, or I just you'd have to show this. So, then we can take that back to our clients and say, look, we've got the, you know, a feel from the judge that, that he, or she might roll this way. So, it's never, this is exactly what I'm going to do. Because again, the judges, the trier of fact in that would be premature for a judge to say, but you can say, they'll give you hints.
Barry Rosenzweig: Can you pick a judge?
Jolene Vicchiollo: No. So, you can, you have one strike. So, when a judicial officer gets assigned to a case you get one strike and then that means the next judicial officer that's who your judicial officer is.
Barry Rosenzweig: How often, or have you ever had a case appealed to the appellate court?
Jolene Vicchiollo: No, not a ton. I mean, I haven't had a case where they, well, that's not true. I did have, I did have a case where they appealed. But not, I mean, there's [16:28 inaudible] you know, every week, if you look at the Minnesota court of appeals mainly on published decisions, there is family law cases.
Barry Rosenzweig: I am sure they're quite expensive. And also, they have to be, they have to have an outcome that that's really going to make a difference, or they're really upset about.
Jolene Vicchiollo: And you have to show what the legal error was or how the judge, you know, misapplied the law. So, it's a high legal standard to do that.
Barry Rosenzweig: Tell me a little bit about prenuptial and postnuptial agreements. I think people are more familiar with prenuptial, but I'd like to talk about it, but post a little bit.
Jolene Vicchiollo: Different and kind of not, I don't want to say newer, but they're becoming more common. So, a prenup is right at the beginning of prior to a marriage, at least 40 hours in advance, right. That you have a prenup and you lay out what's going to happen if you divorce, what's going to happen if one of the spouses dies and you include things like spousal maintenance and what, you know, you attach an exhibit that will say here is all, you know party a's, you know, assets and the values. And then you do the same and everything is disclosed. And you just, it just is like the lay of land what's going to happen should there be a divorce or sometimes a death, a postnup is after you're already married. You execute, it looks like a prenup, right? You say how everything is going to look, but you have to be married at least two years after you execute it. So if you people will often do that if the marriage is getting a little bumpy and they want to say, Ooh, we want to, we don't want to go forward, but we want to make sure these assets go this way. And then they want to try and see if the marriage is going to work, but they're not valid if they haven't had been married for two years after they are executed.
Barry Rosenzweig: It's not always where one spouse is very wealthy, and the other spouse is not. But it may be where they're wanting to make sure that whatever they had is cleared into the marriage, or once they're in the marriage, make sure it's clear. I made a bunch of money or inherited bunch of money, but I want to be entitled to that if something happens to us.
Jolene Vicchiollo: Right. And inheritances are actually non-marital. So those are kind of out. So, if someone, if you're married and you receive a hundred-thousand-dollar inheritance from grandma, that is non-marital.
Barry Rosenzweig: How long?
Jolene Vicchiollo: If you commingle it, then you've got a problem.
Barry Rosenzweig: What if you spend it.
Jolene Vicchiollo: That's gone.
Barry Rosenzweig: Just when they, if you still have it, or you receive it.
Jolene Vicchiollo: Right. So if you receive an inheritance and you buy a house with it and then you divorce, you can show that part of that house value is non-marital because you can trace it back to the inheritance. So that's something, but in prenuptial agreements you want to just be sure that you're addressing that these are, these are our assets and any growth on those assets, any contributions, even if it came from marital money is non-marital. So, I’ll give you an example. If someone has a retirement account and it has X value, if you put it in the prenup and you stay in that prenup, any contributions made during the marriage are still non-marital, then you're bound by that. Because if you don't have a prenup and you have a retirement account, and let's say it has $10,000 in it, and then you marry, and when you divorce, it has 15, part of that is going to be marital. So, the entire retirement account isn't necessarily non marital.
Barry Rosenzweig: Something I want to add here, and you tell me, if you see this a lot is real estate. Spouses buy a property together while they're married or maybe before they're married. And, you know, I know that has issues with who's entitled to what, but they get a mortgage, and they get divorced. And one spouse is, you know, granted the property let's say. I think the assumption is that the spouse who transferred the property over is no longer responsible the mortgage.
Jolene Vicchiollo: That's not true.
Barry Rosenzweig: Right. They still are responsible. And I think sometimes, I mean, maybe I would hope you inform them of that. But I think people don't realize that sometimes that all of a sudden, the spouse who got the house is behind on payments.
Jolene Vicchiollo: Right. And that's one of the things that in drafting of agreements, you have to be very clear on. So, people mix up title and mortgages. So, they think, okay, title is in my name. So, it's mine, or it's in the other spouse's name, as you said, I'm free and clear, but that second spouse is still on the mortgage note. So, if spouse was awarded the house defaults and doesn't pay the mortgage, second spouse, non-owner gets dinged, right? Because the mortgage company doesn't care what your divorce decree says. They're going to say, so we'll put language in that says that if you're awarded the house you have to refinance the note within X amount of time.
Barry Rosenzweig: And what if they can't? I mean, they're in violation of the decree, right?
Jolene Vicchiollo: Right. Well, we usually, if we put that language and we want to be fairly certain, that that spouse can do it, sometimes we'll have a language, like they'll make their best efforts. Sometimes we'll say, if they can't refinance within a year, then the house has to be sold, right. So, there are different remedies, but we put language in a decree that says, this person is going to pay the mortgage and has to indemnify and hold harmless the non-owner. The party who didn't get the house. Now the mortgage company doesn't care about that. But what would happen is if the spouse who doesn't make the payments on the house, other spouse can go back to the family court file and say, look, you know, judge ordered this house sold because he's not making the mortgage payments. My credit has tanked, you know, so there's some kind of relief. And that is an unfortunate aspect of my work is when you see someone's credit, who has, you know, stellar credit just really going from excellent to poor.
Barry Rosenzweig: Do you ever see a situation with real estate where they stay on the title together?
Jolene Vicchiollo: Well, they have to, we have to do a new deed then. They have to be tenants in common. And if they're divorced, they have to be tenants in common instead of joint tenants.
Barry Rosenzweig: Joint tenants. Cause otherwise it inherits a property.
Jolene Vicchiollo: Exactly. So, yeah. So now, and again, people will not very often, but yeah.
Barry Rosenzweig: What about, what takes precedence? A will or a decree or a prenuptial or post, I mean, you talked a little bit about that. We don't have to go into all those things, but what supersedes what, and I know like if you're in joint tenancy, those things supersede or beneficiary and an account, you supersedes the will, but how do the other things interact?
Jolene Vicchiollo: So if you let's say that the way that we see kind of the will interacting with a property settlement or a support obligation is the obligation will frequently be required to have a life insurance policy so that if something happens that spousal maintenance can, you know, you'll get a life insurance policy that is meant to cover however much spousal maintenance or however much child support. But now, and again, someone will be court ordered to have a life insurance policy in the decree. But let's it laps or doesn't do it. So, we put language in our decrees that say in the event that the policy lapse or isn't in place, then the person, the recipient has a claim against the estate. That we're saying that this is an obligation. That is, it's just, there's more hoops to jump through for that person. So, it's better just to keep that. For a will, they have to kind of be done in conjunction like the will needs to match. So, if you have a prenuptial agreement, right. That says, this is how it's to be in death. I would think that that would Trump the will, right? Because you're saying that this is the binding contract and, but you could Duke it out. You could do it out in court over it.
Barry Rosenzweig: Join us for our next episode for part three of this three-part episode on [24:22 inaudible]. Thanks for listening.
This has been the Barry long legal podcast tune in again, as Barry interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. Barry Rosenzweig can be reached at (952) 920-1001 in Minnesota and (480) 227-2203 in Arizona. He can also be reached by email at [email protected] or online at www.barrylaw.com.