MARRIAGE DISSOLUTION – DIVORCE.
In the State of Minnesota, a divorce is technically referred to as a marriage “dissolution”. Minnesota is considered a “no-fault” divorce state. This means that in order to meet the requirement establishing an “irretrievable breakdown” of the marriage relationship, only one spouse needs to believe this to be the case. The court is then required by law to grant a divorce or dissolution, even over the objections of the other spouse. “No fault” divorce also means that the court is not allowed to consider fault or misconduct in making parenting decisions, in dividing assets or in apportioning debt. Nonetheless, where the misconduct directly affects the minor children, or where a parent’s behavior places children at risk of direct harm (for example the ongoing abuse of chemicals), such behavior will be considered by the court. Further, where one spouse has acted in a manner so as to intentionally dissipate or deplete marital assets, or run-up debt, district courts do have the authority to divide property and apportion marital obligations in an “equitable” manner. The court however, is not concerned with which party caused the irretrievable breakdown and will generally not allow any testimony or evidence regarding the same.
To obtain a divorce in Minnesota, either one of the spouses must have resided or been domiciled in the state for at least 180 days prior to the commencement of the proceeding. Being “domiciled” in Minnesota however, does not necessarily require someone to be physically present in the state for 180 days, only that they intended for Minnesota to be their permanent home. For example, a member of the armed services, who is stationed out of state – or their spouse, whose intent was always to come back “home” to Minnesota, may remain a domicile of the state, and may still be able to meet the 180 day residency requirement.
A divorce, or dissolution proceeding is basically a lawsuit, the object of which is the dissolution of the marriage relationship. It is commenced when one party causes a summons and petition for dissolution of marriage to be personally “served”. That is, to have the papers personally handed to the other spouse. The pleadings then need to be filed in the appropriate district court in the county where the dissolution proceeding is venued.
Minnesota is not a “community property” state. Rather, it is considered to be an “equity” state when it comes to property division. This means that marital property is to be divided between the parties based upon “equitable” principals as to what is fair and reasonable under the facts of each case. Marital property is generally any property that was acquired during the marriage. It includes real property (e.g. a homestead, land, or lake property), as well as personal property such as automobiles, household goods, savings, investments and retirement benefits, which were acquired during the marriage. Most judges take an “equitable” division to mean an equal or near equal, fifty-fifty division of assets and liabilities. However, where there is hardship or where one spouse lacks the ability to provide for their own needs, the court is granted considerable discretion to make a disparate division of assets and liabilities. The court, with some limitations, is allowed to consider the parties’ respective contributions to the acquisition and preservation of the marital estate, however it will be presumed that both parties’ contributed to the marriage, even where one party was not employed outside of the home, for example in the case of a homemaker.
Non-marital property or non-marital assets are not considered part of the marital estate, and do not have to be shared with the other spouse. Under Minnesota law, “Non-marital property” means property real or personal, acquired by either spouse before, during, or after their marriage, which
(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;
(b) is acquired before the marriage;
(c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);
(d) is acquired by a spouse after the valuation date; or
(e) is excluded by a valid antenuptial contract.
Accordingly, non-marital assets that have been sold or exchanged for a different asset may retain their non-marital status, if a party can “trace” the ownership and show that the original asset was exchanged for, or was sold and the proceeds used to acquire the new asset. The burden of proving that an asset is non-marital rests squarely upon the party claiming it to be non-marital. For this reason it is important maintain and preserve a paper trail which demonstrates the acquisition and ownership of any asset alleged to be non-marital in nature. It is also helpful if the proceeds were not co-mingled with marital assets, though there is some leeway if a party can show clear tracing of where the funds originated and how they got to be in their present form. Also, placing a non-marital asset into joint ownership, will not necessarily be determinative as to whether or not an asset is marital or non-marital, though doing so may make it more difficult to prove that the asset is non-marital.
CUSTODY AND PARENTING TIME.
There are two aspects to the custody of minor children under Minnesota law. Specifically, legal custody and physical custody. In Minnesota, it is presumed to be in the best interests of a minor child for the parents to share legal custody jointly. This means that both parents have equal rights and responsibilities in participating in and making major decisions determining a minor child’s upbringing as it relates to education, healthcare and religious training. Physical custody means the day-to-day care of the minor child or children. While some states presume that a shared parenting plan (Wisconsin for example) is in the best interests of minor children, there is no such presumption under current Minnesota law as to what physical custody or parenting time arrangements are in the best interests of minor children. Accordingly, it is up to the parties themselves to come up with a day-to-day parenting arrangement that suits their children’s needs. If the parties’ cannot agree, it will be left to a complete stranger, that is a family court judge or referee to make the arrangement, based upon what the court perceives to be in the so-called “best interests” of the parties’ minor children.
In Minnesota, child support is normally determined through the use of a mathematical formula which takes into account both parents’ gross monthly incomes, whether spousal maintenance is being paid, and the amount of time each parent spends with the minor child or children. A parent’s legal obligation to provide support for any non-joint minor child, is also considered. Child support is broken down into three distinct categories and includes; basic support, healthcare support and childcare support. Basic support is a monthly dollar amount paid by one parent to the other. Healthcare support, normally obligates one parent to maintain the healthcare insurance and directs each party to contribute a portion of the monthly premium expense, based upon the parties’ respective percentage of “household” income. Healthcare support also normally includes an obligation for each party to pay a similar portion of any deductible, co-pays, or any other medical, dental or healthcare expense of the minor child which is not covered by insurance.
SPOUSAL MAINTENANCE (ALIMONY)
In a divorce or marriage dissolution proceeding, or in a proceeding for a legal separation, either spouse may request that the court order the other spouse pay to them a monthly dollar amount of spousal maintenance (formerly called alimony in Minnesota). In order to obtain such an order, the spouse seeking maintenance must demonstrate a “need” for maintenance by establishing by a preponderance of the evidence (i.e. a mere tipping of the scales), that they lack sufficient financial resources, including the ability to earn an income, sufficient enough to allow them to meet for their own reasonable monthly living expenses.
Unlike child support though, there are no specific guidelines or mathematical formulas for the court to follow in computing spousal maintenance. Because of this, the issue of alimony rests in the sound discretion of the court. It is frequently said that two different judges hearing the exact same testimony, could reach two very different results when it comes to maintenance. As a consequence, the issue of whether alimony or maintenance is appropriate at all, and in what amounts and for what duration, can all prove very difficult to resolve. In addressing spousal maintenance issues, the judge or family court referee is required to consider the factors set out by the legislature in Minn. Stat. § 518.552, which include:
- the financial resources of the party seeking maintenance;
- the time necessary to acquire sufficient education or training to enable them to find appropriate employment;
- the standard of living acquired during the marriage;
- the duration of the marriage, and in the cases of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
- the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking maintenance;
- the age, and the physical and emotional condition of the spouse seeking maintenance;
- the ability of the spouse from whom maintenance is sought to meet needs while meeting those needs of the spouse seeking maintenance;
- the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.
Generally speaking, the longer a couple has been married, and the greater the disparity in their incomes or earning ability, the more likely it is that spousal maintenance or alimony will be awarded. In any event, the spouse seeking maintenance must still be in a position to demonstrate “need”, in order for maintenance to be awarded by the court.