Divorce FAQs

WHAT’S A DISSOLUTION?

“Dissolution of marriage” is the term adopted by the Minnesota Legislature for “divorce”. It is the termination of the marriage relationship. In much the same way that Minnesota has “correctional facilities” and no “state prisons”, divorces in Minnesota are called “dissolutions”. For many people, going through a divorce is the emotional equivalent of experiencing the loss of a close friend or family member. A major reason for the stress associated with a divorce is the uncertainty involved in resolving issues concerning the children and finances. This fear of the unknown often keeps many couples together. When children are involved, the main issues which need to be resolved are: (1) Where, when and with whom will they reside; (2) How will the children continue their relationship with both parents in a meaningful way; (3) How will decisions concerning their welfare continue to be made; and (4) How will the financial resources be provided to ensure the children’s care and support. Issues about property generally concern: (1) What assets and liabilities do the parties have; and (2) What is a fair and equitable division of the marital assets and liabilities.

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DOES MY SPOUSE NEED TO CONSENT TO THE DIVORCE?

Minnesota is a “no-fault” divorce state, which means that the only grounds required for the granting of a decree of dissolution (or divorce), is for one party to state that there has been an “irretrievable breakdown” of the marriage relationship. The court will then grant the decree even over the objections of the other spouse. Previously, Minnesota, as did most other states (some of which still do), required that a party seeking a divorce prove “fault” before the divorce would be granted. “Fault” usually including things such as infidelity, abandonment, and cruel or inhumane treatment. However, the requirement to prove “fault”, often led people to create a showing of fault, even where none really existed. Although both parties need not “consent” to the actual granting of the dissolution itself, when the parties are unable to agree upon issues concerning children or finances, the length and cost of the proceeding will be increased dramatically.

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WHAT IS REQUIRED FOR A MARRIAGE ANNULMENT?

A court-ordered annulment means that the marriage is legally declared null and void. This means in essence, that you were never legally married. The grounds for doing so however, are very limited and are focused on a lack of legal consent (usually due to either age or mental capacity). Also, if consent to the marriage was obtained by fraud or coercion, that can form the basis to have the marriage legally annulled. Another grounds for annulment, is if either party lacked the physical ability to consummate the marriage. However, there are very strict time requirements with which you must comply, in order to have an annulment granted. Also, in some cases you can not have later cohabited, in order to meet the requirements of the law. See Minn. Stat. § 518.02. https://www.revisor.mn.gov/statutes/?id=518.02

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HOW IS A LEGAL SEPARATION DIFFERENT FROM A DIVORCE?

While a dissolution or divorce ends the marriage relationship, a legal separation merely provides that while the parties are still married, they are living apart. A separation decree addresses the parties’ legal rights while they are apart. To obtain a legal separation, all that is required is for one spouse state that differences between them have arisen, on account of which it is necessary to live separate and apart. The main disadvantage in obtaining a legal separation, is that the court may not necessarily make a final property division and distribution. While the court can decide who will have the use and possession of both real and personal property, both spouses may continue to have or even acquire, an ownership interest in property (including real property), even if the property is acquired after the date of a separation decree. Also, the creation of certain types of debt by a spouse, even after the separation, may result in financial obligations being imposed upon both spouses. None-the-less, a legal separation may be appropriate for couples that need to stay married for religious reasons, for health insurance purposes, or in certain cases where retirement benefits would otherwise be lost. The legal fees and court costs incurred in obtaining a decree of separation are generally the same as in obtaining a divorce decree. Also, should a spouse later decide to get divorced, they will need to start a new proceeding (the divorce or dissolution proceeding), all over again.

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WHAT IF THERE IS DOMESTIC ABUSE?

If you are in immediate danger, call 911 or the Minnesota Domestic Abuse Hotline at 1-866-223-1111, or the National Hotline at 1-800-799-7233. You should be aware that some abusers may monitor your use of your computer and the internet. With this in mind, you may want to see the list of Minnesota Services that are available, but you may wish to do so from a safe computer at http://www.mcbw.org/mnservices. There are a wide variety of services available to persons being battered or abused, including safe shelter, food, clothing, assistance in obtaining restraining orders, support groups and other help within your community. Court personnel are obligated by law to assist abuse victims in filling-out the legal forms necessary to obtain a restraining order. Further, these cases are given priority by being scheduled ahead of all other court cases. Domestic abuse is taken into consideration in Family Court in a number of ways, but it is of greatest significance in child custody and parenting matters. Also, although mediation is frequently required in Family Court, it will not be ordered in situations where the court is aware that abuse has occurred.

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WHAT IF MY SPOUSE IS RUNNING UP OUR CREDIT ACCOUNTS?

You should eliminate any opportunity for your spouse to incur any new debt in your name. Request in writing that your creditors close out any joint accounts and ask that they confirm the same to you in writing. You may wish to reopen the accounts in your name individually, or better yet have both you and your spouse apportion the debts and have each of you open new individual accounts by which you each assume your respective share of the debt. See Minn. Stat. § 519.05. https://www.revisor.mn.gov/statutes/?id=519.05

You should also be aware that even if your spouse is ordered by a judge to assume and pay a certain joint debt, or a debt in your name alone, if they fail to do so, your credit may be adversely effected and the creditor may seek collection of the obligation directly from you. For this reason, you may want to structure property and debt division in a manner such that neither party is relying on a former spouse, to pay any debts or obligations on property awarded to the other spouse.

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IS ALIMONY OR SPOUSAL MAINTENANCE STILL AWARDED?

Yes. In either a divorce or legal separation proceeding, where a spouse lacks the income or sufficient financial resources necessary to provide for their own reasonable monthly living expenses, or where they are in need of vocational retraining or education, the court has broad discretion to award alimony or spousal maintenance. Unlike child support though, there are no specific guidelines or computer formulas for the court to follow. Because of this, the issue of alimony rests in the sound discretion of the court, and two different judges hearing the exact same testimony, could reach two very different results. As a consequence, the issue of whether alimony or maintenance is appropriate at all, in what amounts, and for what duration, can all prove very difficult to resolve. In addressing spousal maintenance cases, a judge is required to consider the factors set forth in Minn. Stat. § 518.551. https://www.revisor.mn.gov/statutes/?id=518.551

Generally speaking, the longer a couple has been married, and the greater the disparity in their incomes or earning capacity, the more likely it is that spousal maintenance or alimony will be ordered.

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HOW MUCH DOES A DIVORCE COST?

The amount of attorney’s fees and costs incurred vary largely from case to case and in large part are determined by the number of differences between you and your spouse. The more issues that are contested means that your lawyer is required to spend more time on your case, resulting in higher fees. Emotions can run very high in a divorce proceeding where there are contested issues. However, it may make sense to try to analyze disputes as if you were confronting a business problem, and to try to find solutions on that basis. You will need to decide what your priorities are. It may be in your best interests to direct your resources to the issues that are the most important to you and to not pursue as vigorously, those things that are less important. Very seldom does one party “win” or prevail on every issue at trial. It’s also important to consider the cost and expense of litigation, as well as the strengths and weaknesses of your case, before you decide to “go to court”.

In uncontested cases, we offer fixed or flat fees which depend on; the number of issues involved, the county in which you reside, whether or not a court appearance will be necessary, whether or not your spouse will sign-off on the agreement, and whether or not your spouse will have an attorney. Fixed fee cases also vary depending on whether they include; minor children, one or more parcels of real estate, pension plans that need to be divided, complicated joint debt, or any other special or unusual circumstances.

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HOW LONG WILL IT TAKE?

The length of time a divorce or other legal proceeding takes is in large measure determined by whether or not there are contested issues, and whether or not minor children are involved. When there is a complete agreement on all issues, a divorce or paternity proceeding can be resolved in as quickly as 4 – 6 weeks. In a divorce proceeding, where there are no minor children involved, it can sometimes even be much sooner than that. However, in cases in where there is much disagreement over children, property division, alimony or spousal maintenance, proceedings can unfortunately last months if not years. There are however, things your attorney can do to speed up the process. Sometimes however, conflicts with the court’s calendar make this difficult.

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HOW DOES THE COURT DETERMINE CUSTODY ISSUES?

There are really two aspects to custody of minor children under Minnesota law. “Legal custody” means the right to make the major decisions concerning the child or children’s welfare. These include; schooling, religious, and non-emergency medical decisions (such as elective surgery or medication decisions). “Physical Custody” means the actual day-to-day care and the physical residence of the child, or children, and is addressed by the court in terms of a parenting schedule agreed to by the parties, or ordered by the court. In Minnesota, the term “visitation”, has fallen into disfavor, and judges, referees and lawyers now address these issues in terms of “parental access”, “parenting time” or perhaps most commonly as a “parenting schedule”.

Under Minnesota law it is a presumed to be in the child or children’s best interest for the parents to share joint legal custody, such that they make major decisions concerning their children on a joint basis. Courts will usually grant joint legal custody, unless there is a showing made that the parties do not, or just cannot effectively cooperate and communicate with one another to work together and address major issues concerning the children. If there has been a history of domestic abuse, or especially if there is an existing Order for Protection, the court is more likely to award one sole legal custody to one parent.

Previously, parents who separate or divorce would agree to joint legal custody, with one parent having the child’s primary physical custody, subject to the other parent’s “reasonable” parenting time. That parenting time would often consist of alternating weekends and holidays. However, arrangements to share in the children’s care jointly, referred to as “joint physical custody” or “joint physical residence”, may be an option, where both parents have been directly involved in the child’s care and where it is in the child’s best interests. Joint physical custody does not have to mean an exactly equal division or sharing of time with the child. Arrangements for joint physical custody are as varied and as creative as people can imagine. For example, some parents will agree on one parent being the “school-year parent with the other parent being the “summer-months” parent. Other parents will share near equally in the children’s care such that on Mondays and Tuesdays the child is with one parent, and on Wednesdays and Thursdays the child is with the other parent, with the parents then alternating Friday through Monday morning to school. Older children may live with the parents for alternating weekly periods. However, for joint physical custody arrangements to work effectively, the parents need to be able to work together and effectively communicate to address issues concerning their children. It is also greatly helpful if the parents reside in relative close proximity, preferably within the same school district.

If parents cannot agree on a custody and parental access schedule they believe is best for their child, a complete stranger, that is, a family court judge or referee, will make the decision for them. Frequently, neither parent will end up completely satisfied with what the judge or referee decides. Also, the court’s perception of what is in the children’s “best interests”, may or may not take into consideration all of the factors and considerations that the parents would. As a stranger viewing the situation from the outside, the court is simply not in a position to have all the knowledge that the parents do concerning their children’s needs and desires. For this reason, it is usually far better for the parents to agree to a parenting schedule that allows both parents to have access with children which allows them both to be a meaningful part of their children’s lives.

The “Best Interests” factors which judges are required to consider in deciding contested custody matters, are set forth in Minn. Stat. § 518.17, Subd. 1, https://www.revisor.mn.gov/statutes/?id=518.17.

Under Minnesota law, there is no “magic” age at which a child’s preference for the custodial parent controls. It is only one of many factors that the court is required to consider. However, the older the child, the more weight is given to any such preference. For very young children, the court will not give much, if any, weight to a child’s expressed preference as to custody. Also, the court will look with extreme displeasure at parents who have tried to influence a child’s decision about which parent they want to live with.

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ARE PARENTING OR CO-PARENTING CLASSES REQUIRED?

In cases where custody or parenting time are contested, Minnesota law requires that parents of minor children attend a minimum of eight hours in a co-parenting orientation and education program. See https://www.revisor.mn.gov/statutes/?id=518.157

Sometimes judges will also order attendance at parenting or co-parenting classes, at the court’s discretion. The co-parenting classes are supposed to be completed within 30 days after the first papers are filed with the court, or as soon as practicable based upon the reasonable availability of the classes. Normally parents are not required to attend the classes together, and parents who are contemplating a divorce or separation may attend the classes in advance of the filing of any papers. Upon completion of the classes, you should provide your attorney with a copy of the certificate of attendance, so that the same can be filed with court administration. Although perhaps inconvenient, the classes usually prove helpful to children and should be looked upon as a learning opportunity. Many parents attend these classes through the Storefront organization. See http://storefront.org/Attendance in online classes is also sometimes approved.

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HOW IS CHILD SUPPORT DETERMINED?

Minnesota now looks at both parents’ gross incomes and applies a formula in determining the amount of child support to be ordered. The amount of “child support” actually consists of three components and includes; Basic Child Support, a Health Insurance & Uncovered Expense Contribution, and a Child Care Expense Contribution (in cases where there are work-related or education-related child care expenses being incurred for the parties’ children).

The contributions towards medical insurance, uncovered health care expenses and child care expenses are now pro-rated based upon each parents’ respective percentage of gross income. The court usually requires the parent who has better health insurance coverage to maintain that coverage, and to share in uncovered expenses in relation to their respective percentage of gross income. Under a somewhat complex formula the new law also takes into consideration adjustments for the amount of time the children spend with each parent (provided it is court-ordered), a credit for non-joint children that either parent is legally responsible to support, and the tax consequences for the parent who is actually paying childcare expenses. The court also has the authority to apportion the right to claim the child or children as dependents for income tax purposes.

The State of Minnesota, Department of Human Services maintains a Child Support Calculator on their web site at http://childsupportcalculator.dhs.state.mn.us/

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DO I REALLY NEED AN ATTORNEY?

If minor children are involved and the court will be addressing custody, parental access and child support issues, or if you own real estate or are dividing pension benefits, it is highly recommended that each spouse consult with their own attorney. A lawyer should also be retained if one party is being ordered to pay spousal maintenance (alimony), or if there are domestic abuse issues. It is a conflict of interest for one attorney to represent both spouses. However, if you and your spouse are cooperating and want to conserve resources by having one attorney draft the necessary paperwork, the other spouse may still want to employ the services of another attorney, if only on a limited hourly basis, to review the final documents and ensure that the terms reflect both parties’ understanding of what has been agreed to.

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WHY NOT JUST DO-IT-MYSELF OR USE A PARALEGAL SERVICE?

Some people are tempted to and use generic forms, a “do-it-yourself” package, or a low-cost paralegal service in an effort to “save money”. However, the adage “you get what you pay for” could perhaps not ring more true, than when it comes to doing-it-yourself, or using a paralegal service in a divorce, custody or child support proceeding. Doing-it-yourself, or using a low cost service to do even an “amicable” divorce or custody agreement may result in delays, and pleadings or proposed orders not being accepted by the court. We have handled more than a few cases where the entire process had to be started over from the beginning. Worse yet, even where the pleadings and orders are filed and accepted by the court, if a party is NOT advised of their legal rights, and where their forms do not include the proper language or “terms of art”, they may unknowingly waive or lose custody, parenting, or property rights, to which they would otherwise be entitled. Even if you are the person drafting the forms, or hiring the paralegal, there is no assurance or guarantee that YOUR rights are being fully protected. Attorneys are required to attend ongoing Continuing Legal Education (CLE), classes in order to keep abreast of the frequent changes that occur in the Family Law area. An attorney must attend CLE in order to maintain their state law license. There is no such requirement for paralegal services, and they may or may not be aware of changes in the law. A good lawyer, like a good dentist, doctor or other professional is expensive. However, sometimes there is just no substitute for thorough, professional legal advice, from an experienced and competent family law attorney.

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WHAT CAN I DO TO LOWER MY ATTORNEY’S FEES & COSTS?

Be organized. Gather all the documents your attorney has asked for and have them organized for your lawyer. Instead of calling your attorney several times, write down all your questions and ask them in one visit or call. Fill out any questionnaires or forms for your attorney as completely and accurately as possible and return them promptly. Although you may be asked to complete forms (the answers to which you may have already provided), it will take your attorney, or their assistant less time to put the final drafts together (and cost you less money), if you take the time to help fill-in that information. Also, to the extent they are needed, it will likely be quicker and less expensive for you to obtain copies of any school, medical, financial, police or other court records or deeds, than it will be for your attorney to obtain them. Some attorneys will also let you hand-deliver pleadings or documents as may be required, in lieu of having to hire a messenger service. If you move or get a new phone number, be sure to provide that information to your attorney. If your proceeding is being done on an amicable basis, see if the other party would agree to sign an admission of service, so as to avoid the cost of having to hire a process server. Be reasonable in your expectations, very rarely does one side ever get everything they’re asking for.

Whether you need help with a divorce or paternity matter in Stillwater or Eagan, an adoption in Woodbury or Anoka, or a domestic abuse matter in Shakopee or Minneapolis, call (651) 636-2600 to schedule an initial consultation.

Our office represents clients throughout the Minneapolis – St. Paul area, including but not limited to New Brighton, Shoreview, Roseville, Falcon Heights, Lauderdale, Plymouth, Anoka, Edina, Richfield, Bloomington, Mendota Heights, West St. Paul, Eden Prairie, Eagan, Burnsville, Brooklyn Center, Brooklyn Park, Stillwater, Woodbury, White Bear Lake, Dellwood, Mahtomedi, Lake Elmo, Oakdale, South St. Paul, Vadnais Heights, North Oaks, Fridley, Spring Lake Park, Robbinsdale, Blaine, Golden Valley, St. Louis Park and Minnetonka.

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