Frequently asked questions:

What are grounds for Divorce?

The only requirement to obtain a divorce in Minnesota is to establish that there has been an "irretrievable breakdown" of the marriage relationship. Only one spouse needs to be willing to say that the marriage has irretrievably broken down, and the court will grant a dissolution of the marriage relationship, even over the objections of the other spouse. In years past, Minnesota, as did most states, required a showing of fault (i.e. abandonment, infidelity, cruel treatment, etc.), before a divorce could be granted. This led people to creating "fault" even where none really existed. As a result, the legislature eventually changed the standard to "no-fault" divorce as it is today. 

In Minnesota, "no-fault" as it relates to a marriage dissolution, also means that it makes no difference who was, or is at fault, in causing a breakdown of the marital relationship. The court will address custody, support, maintenance and the division of property, without regard to which party was at fault in either causing or requesting a dissolution of the marriage.

How is a legal separation different from a divorce?

While a dissolution or divorce decree terminates the marriage relationship, a decree of legal separation merely declares that circumstances have arisen between the parities such that it is necessary for them to live separate and apart. A separation decree normally addresses the parties' respective rights and obligations as a legally separated, but still married couple. Since the parties remain legally married, they may be legally responsible for debts relating to the other spouse's medical care, expenses of last illness, and possibly even debts incurred for their spouse's necessary household expenses. In the event of one spouse's death, the other spouse may also still be treated as a surviving spouse for inheritance purposes. Issues may also arise if one spouse begins receipt of public benefits.

Also, if a legally separated couple later decide to become divorced, they will need to commence a separate dissolution proceeding, and additional fees and costs will likely be incurred.

Nevertheless, a legal separation may be appropriate where the parties desire to remain married for religious reasons, for healthcare insurance purposes, or in some cases where retirement benefits (e.g. Railroad Retiremet Tier I) would otherwise be lost because of a dissolution.

How is custody of minor children addressed?

Custody and parenting time decisions are often the most difficult issues for the court to address. Most judges are convinced that the parents themselves have much more knowledge about their children than the court ever will, and that the parents themselves are in a far better position to determine what is truly best for their children. Because of this, the court will usually insist that the parents first engage in and attempt some form of alternative dispute resolution, either mediation or perhaps more frequently a Social Early Neutral Evaluation (SENE), in order to attempt to work out a parenting arrangement that truly serves the children's best interests. When the parties are unable to do so, and the court is forced to make a decision on custody, the court is required to hear testimony and evidence and to render a decision based upon the "best interests" factors set out by the Minnesota legislature in Minn. Stat. Section 518.17

How is Child Support determined?

In Minnesota, "Child support" actually consists of three parts, including; Basic Child Support, Health Care Support, and a Childcare Expense contribution for work or education related childcare costs. The State maintains a child support "guidelines" calculator online. The calculator applies a formula which  considers: 

1) Each parent’s gross monthly income. 

2) The number of children;

3) Any other child support or spousal maintenance obligations;

4) Whether any Social Security or Veterans benefits are being received; 

5) The cost  of the children's healthcare insurance coverage;

6) Childcare expenses; and

7) The court-ordered number of parenting overnights.

Contributions towards medical insurance, uncovered health care expenses and child care expenses are pro-rated based upon each parent's respective percentage of gross income (or "PICS"). The court will require the parent with the better health insurance coverage to maintain that coverage, and direct the parents to share in any uncovered expenses in relation to their respective percentage of gross income. Under a somewhat complex formula the law also takes into consideration adjustments for non-joint minor children that a parent is legally obligated to support, and the tax consequences for the parent paying the childcare expenses. The court may also has the authority to award either parent the right to claim the child or children for any child tax credits.

How is property divided?

Minnesota is an "equity" state, meaning that upon a dissolution of marriage, the court is required to divide all marital property in an "equitable" manner, based upon what is fair and reasonable under the circustances of each case. Marital property is generally considered to be any property that was acquired during the marriage and includes real property (i.e. 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. To most judges, an equitable division usually means an equal or near equal division of assets and liablities. However, "non-marital" property, is not considered part of the marital estate and absent a clear showing by one spouse of "undue hardship", it does not have to be shared with the other spouse. "Non-marital" property can be real or personal property acquired by a spouse prior to the marriage, received as a gift from someone other than their spouse during the marriage, an inheritance, or property acquired during the marriage in exchange for other non-marital property. The burden of proof with regard to "non-marital" property is on the spouse asserting that it is "non-marital". The treatment of the increase in the value of a non-marital asset during the parties' marriage depends on several factors and rules and is not easily addressed in this forum.

What is required for an Annulment?

A legal annulment means that the marriage is declared null and void, as if it never occured. The effect is that the parties were never legally married. The grounds for an annulment are very limited, and there are some strict time and non-cohabitation requirements which may apply.

An annulment may be granted if there was a lack of legal consent, for example if one person was underage or lacked mental capacity (such as being under the influence of alcohol or other chemicals). Also, if one person's consent to the marriage was obtained by fraud (the misrepresentation of material facts), or coercion (e.g. the proverbial "shotgun" wedding), this can form the basis to have the marriage legally annulled. In some circumstances the parties cannot have later cohabited, and the annulment proceeding needs to be started within 90 days, in order to meet the statutory requirements. 

Another basis for obtaining a marriage annulment is if either party lacked the physical ability to consummate the marriage, and the other person did not have knowledge of this at the time of the marriage. In this situation the proceeding must be brought within one year of obtaining knowledge of the condition. See Minn. Stat. § 518.02, Minn. Stat. § 518.04, and Minn. Stat. § 518.05.