This article is intended to provide you with answers to frequently
asked questions that arise about the legal aspects of divorce so that
you will be better able to understand the process. This is not legal advice - every proceeding is unique and advice and counsel must be directed at the individual circumstances in your proceeding.
In Minnesota, divorce (the legal termination of a marriage relationship)
is now called "Dissolution of Marriage." In this overview, the
terms "divorce" and "dissolution" and "alimony" and "spousal
maintenance" are used interchangeably.
Divorce is difficult for all members of a family, including the spouses,
children and parents of divorcing children. The proceeding often
produces great and continued mental and emotional stress and anxiety
because of undesired change and emotional conflict. Parties involved in
divorce face a continuum of changing emotions including release and
elation and/or grief and sense of loss. Because a person experiencing
divorce makes many subconscious decisions by emotions, it is imperative
that each party receive objective, competent and professional legal
advice and individual counseling and therapy for emotional issues. We
provide thoughtful solutions to your family law problems.
My Question: What is the difference between legal separation and a
divorce?
Answer: A proceeding for legal separation is intended to determine the
rights and obligations of the parties after issuance of a decree of
legal separation. Following final decree, you and your spouse will still
be legally married, but your marital status will be as legally
separated. Certain individuals are morally or religiously opposed to
divorce or may hold some hope of reconciling with their spouse. This
proceeding enables them to chose an option that maintains the legal
marital relationship but severs their legal responsibility for future
debts incurred by their spouse, and determines other rights, such as
custody, child support, spousal maintenance. The court does not make a
final division of marital property but property acquired after the
decree of legal separation is entered may be considered "non-marital" property.
A divorce proceeding ends in dissolving the bonds of marriage between
the parties and finally determines rights of ownership to assets owned
by the parties. It is premised on the assertion by at least one party
that there has been an irretrievable breakdown of the marriage without
hope of reconciliation. If either party petitions for divorce, a legal
separation proceeding is converted to a dissolution of marriage
proceeding.
My Question: Do I need to have "grounds" in order to obtain a
divorce?
Answer: No. There is no longer any requirement that one spouse show
"grounds" to obtain either a legal separation or divorce, such as mental
or physical cruelty, adultery or abandonment. Moreover, the Court will
not permit any testimony on these issues to support the dissolution of
the marriage.
A divorce is granted if the Court finds that there has been an
"irretrievable breakdown" of the marriage relationship. This is usually
based upon the testimony of one spouse that there is no hope of
reconciliation. Therefore, if one spouse is determined to obtain a
divorce, there is very little the other spouse can do to prevent it.
My Question: Is "fault" considered by the Court?
Answer: Under Minnesota law, the "fault" (bad conduct) of either party
is not considered in determining monetary issues such as in dividing
property or determining the proper amount of spousal maintenance or
child support. Fault may only be considered by the Court if a parent's
misconduct reflects upon issues of child custody and visitation.
Therefore, a spouse's conduct during the marriage which has contributed
to or brought about the failure of the marriage is not considered unless
the conduct has some direct relationship to child custody and/or
visitation issues (for example, abuse or neglect of children or conduct
which threatens the safety of the children).
My Question: How does a divorce or legal separation proceeding start?
Answer: In Minnesota, a proceeding for divorce or legal separation
begins when the spouse seeking the divorce (who is called the
"Petitioner") prepares a "Summons" and "Petition for Dissolution of
Marriage" or "Petition for Legal Separation" for delivery on their
spouse. The proceeding formally commences when these documents are given
to the responding spouse (who is called the "Respondent"). The Summons
warns the respondent to formally take part in the proceeding or the
issues will be decided without their participation. Minnesota law
requires the spouse receiving a Summons in a dissolution proceeding to
respond within thirty (30) days after receiving the papers.
If you are the respondent, you have the right to prepare and reply by a
document entitled an "Answer and CounterPetition." Your written Answer
must be served on your spouse or attorney within 30 days of your receipt
of the Summons.
The "Petition" or "CounterPetition" summarizes basic facts about the
couple's situation including names and ages of spouses and children,
date of marriage, and a brief description of income earned, property
owned and any unpaid debts. The Petition or CounterPetition also
summarize the requests of the petitioning spouse, such as dissolving the
bonds of marriage, establishing the custody and visitation of children,
child support and/or spousal maintenance, and dividing the property and
debts between the parties.
If you believe you and your spouse can agree on all matters, Minnesota
law provides that both parties can join in a petition for a divorce or
legal separation in a Joint Petition (the parties are referred to as
"Joint Petitioners"). If you have also reached agreement on all issues,
a Joint Petition and Stipulation can be prepared for your signatures
which will expedite the proceeding.
Call Minnesota's Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or
to arrange your complimentary consultation.
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My Question: What happens after the proceeding begins? Can I
receive immediate relief?
Answer: After the Summons and Petition are delivered to the responding
party, the petitioner may desire or need immediate, interim relief, such
as interim child support or spousal maintenance, or Court assistance to
set an interim custodial relationship or schedule visitation. Unless
satisfactory settlement of these issues can be made without Court
assistance, a court hearing may be held shortly after delivery of the
Summons and Petition for this purpose. This "Hearing for Temporary
Relief" is intended to determine the legal rights and obligations of
each spouse while the case is pending.
In many of the metro counties, parties are required to attend an Initial Case
Management Conference (ICMC) following the filing of the Summons and Petition. At
this informal hearing, the assigned judicial officer and the parties and
their attorneys meet to discuss matters involving temporary relief and
identify mutually agreeable temporary arrangements which often
eliminates the need for a separate hearing. An Order will issue after
the hearing setting forth the binding agreements of the parties.
If a temporary hearing is needed, the parties must submit formal
statements (affidavits) and financial information in advance of the
hearing and the Court will make temporary decisions about whether one of
the spouses will be granted the exclusive occupancy of the home, which
parent will have physical custody of the child or children, the amount
of temporary child support and/or spousal maintenance (formerly called
"alimony"), how debts or obligations will be handled during the
proceeding and other requests as either party may request the Court to
consider. The Order for Temporary Relief determines the rights and
responsibilities of the parties until a final decision can be made or
until it is further modified by court order.
Although the Order is not supposed to prejudice anyone's rights at
later hearings, the Order may remain in effect for many months and may,
in fact, ultimately influence the final terms of the divorce. For this
reason, it is strongly advisable that both parties have competent legal
assistance at an initial case management conference and/or temporary hearing.
My Question: How is divorce information obtained?
Answer: It is often necessary to obtain information and documents from
the other spouse. The process of obtaining information from the other
spouse is called "discovery." Most often, the attorneys representing the
parties exchange information on an informal basis by responding to
requests made by the other attorney. By Rule, certain financial
information must be exchanged by the parties and provided to the Court
for setting financial obligations. If informal exchange of information
does not provide meaningful information, the rules governing divorce
proceedings provide for more formal tools to obtain this information.
Some of the formal tools that lawyers use in this "discovery" process
include the following:
* Interrogatories: These are written questions to which the other
spouse must respond, in writing and under oath.
* Requests for Production of Documents: These requests are made to
review and copy records in the possession or control of the other
spouse.
* Depositions: A deposition is a question and answer procedure where one
party is asked questions while under oath in the presence of a court
reporter. The court reporter prepares a written transcript of the
questions and answers/testimony.
Other discovery tools are available and may be used to address unique
issues presented in a divorce proceeding. Because formal discovery is
costly and time-consuming, every effort should be made to provide full
and complete information informally to the other party.
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My Question: Can my spouse and I settle our case without going to
Court?
Answer: Yes. After both lawyers have carefully questioned their clients
and obtained the necessary information in the discovery process to
familiarize themselves with the important facts, settlement negotiations
take place, either formally or informally between the attorneys and the
parties. Offers and counter offers are made by letter, telephone and
sometimes at meetings at which the attorneys and spouses are all
present. Often times, couples are either encouraged or ordered to attend
a dispute resolution process, such as mediation, where a “neutral”
person works with the parties to resolve disputes by compromised
agreement. Because mediation is now required by Minnesota law, you can
expect to participate in this process.
Most divorce cases are eventually settled without the necessity of a
contested trial. When settlement is reached, the agreements are written
into a document called a "Stipulation" or "Marital Termination
Agreement." This document encompasses all of the terms and conditions of
the resolution of your case.
Call Minnesota Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or
to arrange your complimentary consultation.
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My Question: What happens after we settle our case? What if we
can't reach a settlement?
Answer: After the Stipulation has been signed, one of the spouses may
appear at a very brief hearing so the Court can review and approve the
agreements and enter a "Judgment and Decree." The Judgment and Decree is
the document that formally terminates the marital relationship and
establishes the permanent legal obligations of the parties. This
document is commonly referred to as the divorce decree.
If a full agreement for settlement is not reached, the Family Court
Judge or Referee usually holds a pre-trial or settlement conference. At
this conference, areas of agreement and dispute are discussed. These
discussions often help the parties settle their case. If not, various
procedural matters can be handled and a trial date will be scheduled.
At a contested trial, both parties have the opportunity to testify
and call witnesses to support their point of view and positions on all
contested issues. In Minnesota, divorce cases are decided by a judge,
not by a jury. The judge will listen to the testimony of the witnesses
and the arguments of the lawyers, review documentary evidence and then
make a decision.
My Question: What law applies to divorces in Minnesota?
Answer: In making any decision related to a divorce proceeding, the
trial judge is guided by standards set forth in the Minnesota Statutes,
chapter 518, Chapter 518A as to child support, and case law in Minnesota
construing these statutes.
My Question: Do I get to keep property I owned before my marriage?
Answer: Most of the time you will be entitled to keep this property if you
can prove the property is your non-marital property. Under Minnesota law,
nonmarital property is defined as property (including land, furniture, jewelry,
bank accounts, investment accounts, retirement accounts, cars) owned prior to
marriage, or an inheritance, gift or bequest to either party prior to or during
the marriage. The value of this property must be traced through the marriage and
the burden of proving the non-marital source rests entirely on the person making
the claim. For this reason, if you are going to make such a claim, you will need
all documents to trace the monies or property back to your first purchase
of the property and any funds used to acquire the property. In the case of
inherited property, you will need to provide the documentation showing the
inheritance. For example, the Will of your relative or the letter or receipt
evidencing the payment to you from the Estate. Additionally, there are times
when a pre-marital debt is paid off during the marriage by refinancing. The use
of new debt to pay off premarital debt should be addressed in the divorce
property settlement.
Call Minnesota Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or
to arrange your complimentary consultation.
In making its decision about custody of children in a
Minnesota legal separation, divorce or paternity proceeding, a Court
will determine which custodial alternative will serve the "best
interests" of the children. The Court must decide:
* Legal custody: Legal custody involves is the right to make major
decisions about a child's upbringing, including the decisions concerning
the child's education, medical, and religious upbringing; and
* Physical custody: Physical custody involves the future residence of
the child (where and with whom the child or children will physically
reside).
Because both legal custody and physical custody may be either "sole"
(where the daily care is controlled by one parent) or "joint" (daily
care is structured between both parents), many different custodial
alternatives exist.
A. In evaluating the "best interests of the child" for purposes of determining issues of custody and parenting time, the court must consider and evaluate all relevant factors, including the following factors:
(1) a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;
(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;
(5) any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
(6) the history and nature of each parent's participation in providing care for the child;
(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
(8) the effect on the child's well-being and development of changes to home, school, and community;
(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;
(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
B. The foregoing clauses will govern the application of the best interests of the child factors by the court. In addition:
(1) The court must make detailed findings on each of the factors in the foregoing clauses based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court must consider that the factors may be interrelated.
(2) The court must consider that it is in the best interests of the child to promote the child's healthy growth and development through safe, stable, nurturing relationships between a child and both parents.
(3) The court must consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child's needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.
(4) The court must not consider conduct of a party that does not affect the party's relationship with the child.
(5) A disability alone, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child.
(6) The court must consider evidence of a violation of section 609.507 in determining the best interests of the child.
(7) There is no presumption for or against joint physical custody, except as provided in clause (9) below.
(8) Joint physical custody does not require an absolutely equal division of time.
(9) The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children as referenced in A (12) above.
C. In a proceeding involving the custodial responsibility of a service member's child, a court may not consider only a parent's past deployment or possible future deployment in determining the best interests of the child. For purposes of this paragraph, "custodial responsibility" has the meaning given in section 518E.102, paragraph (f).
Question: Is there any help offered by the Court?
Yes. In disputed custody and/or visitation proceedings, the parties are
sometimes referred by Order to family court services for a custody evaluation or
parenting time evaluation. Following interviews and review of collateral source information, the assigned staff
member from family court services will issue a report containing
recommendations to the Court for custody and parenting time (formerly
known as visitation). This report is often given great weight in the
final decision of the Court.
This Article is merely an introduction to some of the questions that are
frequently asked. Please review our other articles on child support and
spousal maintenance for an overview of those issues. Because every
person's situation is unique and because the law itself is constantly
changing, please do not rely solely on this overview in making any
decision about a specific situation. Advertisement
Please feel free to call Minnesota's Best Divorce Attorney Paul
Shoemaker at 952-224-4605 for your complimentary consultation.
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Call Minnesota's Best Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or
to arrange your complimentary consultation.
