Q & A MN Divorce

The following articles are intended to answer frequently asked questions related to divorce proceedings in Minnesota and to provide an overview on how custody is decided in Minnesota.

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.

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. Because a person experiencing divorce makes many subconscious decisions by emotions, it is imperative that each party receive competent, professional legal advice.

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 is "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.

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.

Under Minnesota law, the "fault" of either party is no longer 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).

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.

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 Hennepin County, parties are required to attend an Initial Case Management Hearing 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 and/or temporary hearing.

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. 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.

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.

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.

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.

In making any decision about custody of children, the Court will first determine whether Minnesota Courts have jurisdiction or legal authority to make a decision concerning child custody. Minnesota has adopted the UCCJEA, the Uniform Child Custody Jurisdiction and Enforcement Act. The Act limits the jurisdiction of Minnesota Courts in making custody decisions. The UCCJEA will prevent Minnesota from entertaining a custody decision if the parties do not meet the requirements of the Act. If the Court has jurisdiction, the Court will determine which custodial arrangement will serve the "best interests" of the children. The Court must decide the following:

* 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;

* 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 decisions or daily care are controlled by one parent) or "joint" (daily care and decisions are structured between both parents), many different custodial alternatives exist.

In determining which custodial alternative will serve the "best interest" of the children, the Court may not prefer one parent over the other solely on the basis of the sex of the parent, but must consider all relevant factors, some of which include:

2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference. Generally, the preferences of children of sufficient age and maturity are considered by the Court if the preferences have not been unfairly prejudiced by a parent;

3. The child's primary caretaker. This factor examines who of the parents have been more involved in the daily care and feeding of children;

5. The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;

7. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

8. The permanence, as a family unit, of the existing or proposed custodial home;

10. The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, of any;

12. The affect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents.

13. The disposition of each parent to encourage and permit frequent contact and continuing contact by the other parent with the child(ren).

No one factor noted above is exclusive in the Court’s decision and the Court must make detailed findings of each factor in reaching its decision.

When either joint legal or joint physical custody is contemplated, the Court is to consider all of the above factors and the following factors:

2. Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

3. Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

4. Whether domestic abuse, as defined in section 518B.O1, has occurred between the parents.

Upon the request of either parent, unless there has been domestic abuse, the Court is to presume that joint legal custody is in the best interests of the children.

A parent who receives parenting and access time with a child or children has a right to have their child or children in their physical custody during their access/parenting time. Often the parties work out a parenting time agreement wherein each parent has the children on important days, school breaks, special days, and holidays, on an alternating basis. In addition, often parents work out agreements to provide extended parenting time for summer vacations or extended parenting time can be ordered by the Court.

Yes. In disputed custody and/or visitation proceedings, the parties are often referred to family court services for mediation and/or a custody evaluation or parenting time evaluation. Following interviews and background testing and investigation, 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. The parties may also wish to consult and jointly retain independent experts for an independent evaluation.

Please note the Court does not consider marital misconduct of a parent if the misconduct did not affect the relationship with the child.

These Articles are 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. Please feel free to consult with us on any question you may have.

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Last modified: June 04, 2008