Experience in finding solutions and winning cases!

MARRIAGE DISSOLUTION – DIVORCE.

In Minnesota, a divorce is technically referred to as a “dissolution of marriage”. Minnesota is a “no-fault” divorce  state. This means that only one spouse needs to be willing to say that there has been an "irretrievable break-down" of the marriage relationship". The court will then grant a termination of the marriage relationship - 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. However, where the misconduct  directly effects a minor child, or where a parent’s behavior places a child at risk of harm (for example the ongoing abuse of chemicals), such behavior will be considered by the court. Also, where one spouse has depleted marital assets, or run-up debt, the court has considerable discretion to divide property and apportion marital obligations in an “equitable” manner. However, the court will not consider which party is responsible for the irretrievable breakdown, and it will usually not allow any  testimony or evidence regarding the same.


To obtain a divorce in Minnesota, either one of the spouses must have  resided in, or been domiciled in the state for at least 180 days prior to the commencement of the proceeding. Being “domiciled” 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 in reality 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 to be personally “served”. That is, when the documents are personally handed to the other spouse. The pleadings then need to be  filed in the appropriate district court in the county where the proceeding will be heard or venued.

 

PROPERTY DIVISION.

When it comes to the division of property, Minnesota is considered an “equity” state. This means that marital property is to be divided between the parties  based on “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, 50-50 division of assets and liabilities. However, where there is extreme hardship or where one spouse lacks the ability to provide for their own needs, the court may, at its discretion, 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 is conclusively 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.

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 means both real or personal, acquired by either spouse before, during, or after their marriage, which is:


(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.


Also, 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 were placed 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. Doing so however, 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 joint legal custody. 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 a judge perceives to be in the “best interests” of the parties’ minor child.


CHILD SUPPORT

In Minnesota, child support is 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 court-ordered parenting time that each parent spends with the minor children (based upon the number of overnights averaged over a two-year period). 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 expense reimbursement. 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 income for child support (or "PICS"). Healthcare support also normally includes an obligation for each party to pay a portion of any deductible, co-pays, or any other medical, dental or  healthcare expense of the minor child not covered by insurance, in proportion to their respective "PICS". The State maintains a website which computes the amount of support on its "child support calculator".


SPOUSAL MAINTENANCE (ALIMONY)

In a dissolution proceeding, or a proceeding for legal separation, either party may request that the court order the other party pay them a monthly amount of maintenance (formerly called alimony). In order to obtain  such an order, the spouse seeking maintenance must prove that they lack sufficient financial resources which would allow them to meet their own reasonable needs. In demonstrating a “need” for maintenance, the must establish by a preponderance of the evidence (i.e.  a mere tipping of the scales), that they lack financial resources, including their own earning ability, which would allow them to meet their own reasonable monthly living expenses.


Unlike child support though, there is no specific guideline or mathematical formulas for the court to follow in determining an appropriate level of spousal maintenance. Because of this, the issue of alimony rests soundly in the discretion of the court. It is frequently said that two different judges hearing the exact same testimony, could reach two very different outcomes when it comes to maintenance. As a result, 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 respective incomes or earning abilities, the more likely it is that spousal maintenance or alimony will be awarded. However, the spouse seeking maintenance must still be in a position to demonstrate “need”, in order for maintenance to be ordered by the court

Testimonials

"John helped me through my divorce,  he was always willing to answer all of my questions and kept me  informed. He has excellent hours, even willing to meet on Saturdays. I  have recommend him to many of my friends."


Patty, Divorce Client  (Read Full Review on Avvo)

Find out more