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From the Bench - Reducing family court pain and expense

Many of you have either gone through a divorce, child custody battle or know someone who has. I'm sure that many of you have also heard or experienced horror stories of the pain, strife and expense of the marriage dissolution and child custody process.

The family court litigation process too often morphs into a war of attrition as the parties exchange heated accusations and get entrenched in their positions, virtually guaranteeing a lengthy and expensive court battle. In most cases, no one wins these battles as both parties suffer the loss of a great deal of time, expense and the suffering of emotional trauma and accompanying physical trauma. If children are involved, they also suffer greatly from being caught in the crossfire of their parents' court fight.

In an effort to address this problem and to expedite the speedy resolution of family court cases, the state district courts in Minnesota have instituted a program called Early Neutral Evaluation (ENE).

ENE is an early case management program to assist parties in resolving family court cases before a lot of financial and emotional resources are expended on fighting these cases in court. ENE is a confidential process of case resolution that moves families through court as quickly, fairly, and inexpensively as possible.

When a case involving divorce, custody or parenting time is filed in court, the court promptly sets an initial case management conference (ICMC) to bring the parties before the court within two or three weeks to discuss the possibility of setting up an ENE dispute resolution session. The judge presiding at the ICMC also tries to resolve any preliminary issues between the parties on a temporary basis, such as living arrangements, child visitation, custody, support and other immediate concerns the parties might have.

One type of ENE addresses custody and parenting time issues, and the other type of ENE addresses financial issues. The custody and parenting time early neutral evaluation (CPENE) involves a two-person male/female team experienced in family court cases. The team meets with the parties and their attorneys, if represented. Each party makes a brief presentation of his or her position, responds briefly to the other's presentation, and answers questions from the CPENE team.

The team confers privately about their impressions of the case and provides observations to the parties about the likely outcome in court if they were to engage in a full custody and parenting time evaluation as well as a court trial. Also discussed are settlement options for the parties to consider. The parties then may consult privately with their attorneys or their advisors and attempt to negotiate a settlement.

A financial early neutral evaluation (FENE) usually involves only one qualified financial evaluator, male or female, and follows the same process as a CPENE, except the focus in such a session is on the financial issues between the parties rather than custody and parenting time.

The ENE process is designed to be completed within 30 to 60 days after the initial court conference is held. When parties participate in the ENE process, valuable judicial and court time is freed up to handle emergency, law enforcement and other matters. This results in cost savings to the court and, ultimately, the taxpayers.

The ENE process has been very successful in Minnesota. Settlement rates average 60 to 80 percent across the state.

Anyone considering filing a divorce, child custody or parenting time case should be aware of the availability of the court ENE process to make this major life event and transition as smooth and cost-effective as possible.


Judge Frank Kundrat is a District Court Judge for the Seventh Judicial District of Minnesota and is chambered in St. Cloud.