Frequently asked questions
What is a marriage "dissolution"?
In the State of Minnesota, a divorce is referred to as a marriage "dissolution". The legislature thought it sounded less harsh than "divorce".
What are the grounds for a dissolution of marriage (divorce) in Minnesota?
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 property divided in a dissolution?
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.
How are custody and parenting time decisions made?
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. To this end, 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.
What is an Early Neutral Evaluation?
An Early Neutral Evaluation (often referred to as an ENE) is a form of alternative dispute resolution frequently used by the court in helping the parties resolve disputes without having to go through a formal court hearing or trial. ENE's are considered confidential in that the positions of the parties and the recommendations of the evaluators are not allowed to be used in court. The goal is to allow the free exchange of settlement proposals, so that a resolution can be acheived, without the need for further court proceedings.
Social Early Neutral Evaluation (SENE), is a voluntary, confidential process designed to help families reach a resolution of contested custody and parenting time matters. They are usually held early in the process, normally within several weeks after the initial filing of the court proceeding. SENE's are performed by a two-person team (a man and woman evaluator), who basically listen to each parent's story, and then offer their evaluative opinion of the custody and parenting issues and what the likely outcome would be if the matter went to court. From that point the parties are afforded a period of time to consider the evaluators' recommendations. Following that, the parents and their attorneys try to work our an arrangement to resolve the dispuste in a manner acceptable to both parents. Evaluators at an SENE can request additional information (e.g. police reports, school records, the use of other experts, or even interviews with the children), if warranted. However, this will normally require more than one session. SENE's are highly favored by the courts as they are very successful in helping parents resolve their disagreements.
Financial Early Neutral Evaluation (FENE), is a voluntary, confidential process designed to help parties resolve financial disputes, most frequently in a dissolution proceeding. One evaluator is selected (usually an experienced attorney or accountant), well-versed in family law who has received special training in the FENE process. The process is centered on saving resources and avoiding litigation by presenting each parties’ positions to an experienced neutral evaluator who most often will share his or her view of the problem and what the court would likely do. The FENE is a confidential process and the positions of the parties and the opinions of the evaluator at the FENE are not allowed to be used in court.
In most Minnesota district courts, the parties choose their evaluator from a roster maintained by court administration.
What is meant by the terms "legal custody" and "physical custody"?
There are really two aspects to custody of minor children under Minnesota law. Specifically, "legal custody" means the right to make the major decisions concerning the child or children's welfare. These include; schooling, religious, and non-emergency healthcare decisions (e.g. elective surgery, orthodontia, the need for counseling, etc.). The term "physical custody" means the actual day-to-day physical care and residence of the child, or children, and is addressed by the court in terms of a parenting time schedule that is either 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 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, so that they will 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 each other 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 parent sole legal custody. Whether joint or sole legal custody is granted by the court, both parents usually have a right to access their children's healthcare, school and religious records. See
Minn. Statutes Section 518.17 Subd. 3a.
There is no statutory preference in Minnesota as to physical custody, and whether or not the granting of joint or sole physical custody is in a child's best interests. It is left for the parties to agree, or the court to decide, what is in the best interests of minor children based upon the history and circumstances of each situation. Also, with changes in the law regarding how child support is now computed (based on the amount of time the children spend with each parent), there is far less difference or importance today in the label of "physical custody". The major focus today is on parenting time.
How is child support determined in Minnesota?
In Minnesota, "Child support" actually consists of three parts and includes: Basic Child Support, Health Care Support, and a Childcare contribution for work or education related childcare expenses.
The State of Minnesota, Department of Human Services maintains a
child support "guidelines" calculator on its web site. This calculator applies a formula and computes each parent’s respective obligations after considering the following factors:
1) Each parent’s gross monthly income. 2) The number of children living in each parent’s home. 3) The amount of any other child support or spousal maintenance obligations. 4) The amount of any Social Security or Veterans benefits being received. 5) The cost for both medical and dental insurance coverage. 6) The cost of any work-related or education-related child care expenses. 7) The percentage of court-ordered parenting time for each parent.
The contributions towards medical insurance, uncovered health care expenses and child care expenses are pro-rated based upon each parents’ respective percentage of gross income or PICS. The court usually requires the parent with the better health insurance coverage to maintain that coverage, and directs 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 the amount of parenting time each parent has (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 for any childcare expenses.
The court also has the authority to apportion the right to claim the child or children as dependents and for any tax credits for income tax purposes, and to deviate from the guidelines, if it can be shown to be in the children's best interests to do so.
The court may also consider whether a parent is intentionally unemployed or under-employed.
How is spousal maintenance (alimony) determined?
In order to obtain an award of maintenance, the spouse seeking it must demonstrate a “need” for maintenance by establishing that they lack sufficient financial resources, including the ability to earn an income sufficient enough to allow them to meet for their own reasonable and necessary 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 maintenance (alimony) rests in the discretion of the judge assigned to your case. It is often said that two judges hearing the same testimony, could reach two very different results 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 sometimes prove very difficult to resolve. In addressing spousal maintenance, the court is required to consider the factors set out by the legislature in
Minn. Stat. § 518.552, which include:
a) The financial resources of the party seeking maintenance;
b) The time necessary to acquire sufficient education or training to enable them to find appropriate employment;
c) The standard of living acquired during the marriage;
d) 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;
e) The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking maintenance;
f) The age, and the physical and emotional condition of the spouse seeking maintenance;
g) The ability of the spouse from whom maintenance is sought to meet needs while meeting those needs of the spouse seeking maintenance; and
h) 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. 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.
When are parenting or co-parenting classes required?
In proceedings where custody or parenting time of minor children is contested, Minnesota law requires that both parents attend a minimum of eight hours in a co-parenting orientation and education program. See Minn. Stat. § 518.157. Sometimes attendance at parenting or co-parenting classes is also ordered in subsequent proceedings, if the court beleives it would benefit the parties - or their children. Note that the parents need not attend the classes together, but it may be beneficial for them to both attend the same program.
Co-parenting classes are required to be completed within 30 days after the first papers are filed with the court, or as soon as practicable based upon the availability of the classes. Parents who are contemplating a divorce or separation may attend the classes in advance of the filing of any legal papers with the court. Upon completion of the classes, a copy of the certificate of attendance needs to be filed with court administration. The classes often prove helpful to parents and their children and should be looked upon as a learning opportunity.
One of the most highly recommended co-parenting programs is the Bridging Center's
Bridging Parental Conflict program. However, most county's publish a list of other acceptable co-parenting programs or courses.
What is required for a marriage 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 limitations 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 (e.g. under the influence of drugs or alcohol). Also, if one person's consent to the marriage was obtained by fraud (e.g. lies, deceit, misrepresentation of material facts), or coercion (e.g. the proverbial "shotgun" wedding), this can form the basis to have a 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 after obtaining knowledge of the condition. See
Minn. Stat. § 518.02,
Minn. Stat. § 518.04, and
Minn. Stat. § 518.05.
What if my spouse is running up our credit or debt?
You may be liable for debts incurred by a spouse in certain circumstances, especially if it is icurred for necessary medical services, or necessary household articles and supplies furnished to and used by family members. This may be true even if the debt is incurred on an account not in your name.
Nonetheless, it may be best to limit or eliminate a spouse's ability to incur any credit in your name. A spouse may request in writing that any creditor close out any joint account and reopen an account in their name individualy. A possible solution is to apportion the existing debt between each spouse, and have each spouse open individual new accounts, and transfer their respective portion of debt into each spouse's name individually.
See Liability of Husband and Wife for debts,
Minn. Stat. § 519.05.
How much will my attorney's fees and legal costs be?
The amount of attorney's fees and costs incurred for most legal proceedings vary greatly from case to case, and are determined mostly by the amount of legal work and time required. The amount of time required is directly related to the number and extent of any disagreements between the parties. The more issues that are contested, and the longer the parties disagree over them, the greater the cost will be in terms of not only attorney's fees and legal expenses, but also in terms of emotional stress and anxiety on the parties.
In uncontested cases where the parties agree on all issues, our office provides legal representation on a flat-fee or fixed-fee basis, plus any out-of-pocket costs (such as court filing fees, charges for obtaining records, parking, mileage, photocopies, etc.). The amount charged for representation on a fixed-fee basis also depends on several factors, including; the nature of the proceeding, the type and number of issues involved, the county location, and whether or not a court appearance is required.
If you have an uncontested matter and would like a specific quote for legal representation on a fixed-fee, plus costs basis, please contact our office to schedule an initial consultation.
What can I do to lower my attorney's fees and legal costs?
Be organized. Gather any documents requested by your attorney or their staff and have them organized for your attorney. Write down all of your questions and ask them in one call or visit so as to avoid multiple charges for your attorney's time. As best you are able, fully and accurately complete any questionnaires or forms and return them to your attorney promptly. Although the court sometimes requires multiple forms that ask for the same information, it will save your attorney or their legal assistant time - and you money, if you fill in the forms for your attorney to finalize.
Gather any requested documents. To the extent they are needed, it will likely be quicker and less expensive if you provide your attorney with any real estate, medical, police, financial or school records. Your attorney will be able to retrieve your records with an authorization from you, but it will likely be quicker and far less expensive for you to obtain the records directly, and then provide them to your attorney.
If you reach voicemail, leave your phone number. Even though your attorney or their assistant have it, it will save them time and result in less fees to you.
Keep your lawyer informed. If you move, change phone numbers, or believe you've worked out an agreement with the other party directly, tell your lawyer as soon as possible to avoid incurring needless fees and costs.
Have realistic expectations. Seldom does one party prevail on all issues in court. It may be best for you to prioritize the issues in your case, and to focus on those which are of the greatest importance to you, so you can acheive the results you desire on those issues, and compromise on matters of lesser importance to you. It may help to approach your case from a business perspective in that you focus your resources on those matters which are of greatest importance to you.
How is a legal separation different from a dissolution (divorce)?
While a dissolution or divorce decree terminates the marriage relationship, a decree of legal separation merely declares that the parities are separated and living apart from each other. A separation decree normally addresses the parties' respective rights and obligations as a 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.
Also, if a legally separated couple later decides to beocme divorced, they will have to commence a new and separate dissolution proceeding, and incur the fees and costs associated with a second legal proceeding.
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 II) would otherwise be lost because of a dissolution.
What is a Recognition of Parentage (ROP)?
In order to more easily obtain reimbursement of public assistance placed on behalf of children born outside of marriage, the federal government required states to pass laws which allowed for the creation of a parent-child relationship, without the need for a court order. In Minnesota the method for doing this is a document called a Recognition Of Parentage (often referred to as a ROP), which must be signed by both parents before a notary public.
Once formally signed by the parties, a ROP has the same effect as a court order adjudicating the man as the father of the child. Although the county or mother may then easliy obtain an order for the payment of child support, the ROP confers no rights upon the father to have custody or even parenting time. Signing a ROP also limits the time that either parent may have to later request that a court order parentage testing, or to declare the ROP void.
Some people refer to ROPs as the "poor man's adoption" as it quickly and inexpensively creates a legal parent-child relationship for a man not married to the mother at the time of a child's birth. However, it is usually not a wise thing for either a man or woman to sign, unless they are
absolutely certain that the man is in fact the child's father. There are many valid reasons why either the mother or alleged father should not sign a recognition of parentage. For example, many alleged fathers may not really be sure that they are in fact the biological father. Some mothers may be in the same position. For obvious reasons, parentage testing is usually best done sooner, rather than later.
There are strict time limits to have a ROP deemed invalid. Mothers may have valid reasons not to have the biological father adjudicated as the child's father. For example, where there is no ROP signed, and where no court proceeding has formally ajudicated the man as the child's father, the mother may place the child up for adoption, or even do a step-parent adoption with a future husband, with no notice being required to be given to the biological father.
Fathers of children born outside of marriage have very limited rights, unless and until they seek and obtain a court order to enforce their rights. If you would like to learn more, please call to schedule an initial consultation.
How does parentage testing work?
Parentage tests are performed by drawing samples of genetic material from the mother, child and the alleged father (although some non-legal and commercially available kits will test just the father and child's genetic material). Traditionally, the samples tested were blood samples, however most labs doing DNA testing now use saliva easily obtained by use of a cotton swab. The samples are then analyzed for genetic markers. If the child's DNA has markers not present in either the mother's sample or the father's sample, it can be conclusively determined that someone else provided those markers and that the alledged father is not the biological father. However, it cannot yet be conclusively determined with 100% certainty that someone is the biological father of a child. Nonetheless, many test results come back showing a likelihood of 99% or higher. Under Minnesota law, if parentage test results are 92% are higher, temporary child support may be ordered, and the burden of proof shifts to the alleged father, to prove that he is not the father. Although an alleged father is entitled to a jury trial on the issue of paternity, with the advent of DNA testing, few if any jury trials have been held in Minnesota courtrooms for over the past decade.
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. You should be aware however, that some abusers may monitor your use of your cell phone calls and your use of the internet. With this in mind, you may want to access online resources from a safe computer.
In any event, there are a wide variety of services available to persons who are being abused or battered, including; safe shelter, food, clothing, assistance in obtaining a restraining order, support groups, and other help within your community. Also, by law, domestic abuse matters receive priority over all other court cases and are required to be heard within 14 days of being filed. Further, court personnel are obligated by law to assist domestic abuse victims in filling-out the legal forms necessary to obtain a restraining order.
In Minnesota, "domestic abuse" is defined as one or more of the following acts committed by a family or household member against another family or household member:
a) the infliction of physical harm bodily injury or assault;
b) the infliction of
fear of imminent physical harm;
c) terroristic threats (
Minn. Stat. § 609.713);
d) criminal sexual misconduct (Minn. Stat. §§
d) interference with an emergency 911 call (
Minn. Stat. § 609.78).
The definition of a "family or household member" includes the following:
a) a spouse or former spouse;
b) persons involved in a significant romantic or sexual relationship;
c) parents or children;
d) persons related by blood;
e) persons living together or who have lived together in the past;
f) persons who have or had a child in common (born or in utero), regardless of whether they were living together or ever married.
Acts of domestic abuse and violence are taken into consideration by the court in a number of ways, but perhaps most significantly in area of child custody and parenting time. Also, although mediation is usually required in family court cases, the court will not order the parties to participate in mediation when it would require the parties to be present together in the same room.
At what age can a minor child decide where to live?
In Minnesota, there is no magic age at which a minor child is automatically entitled to determine where they reside. A child's preference is only one of the many factors set forth in the "Best Interests" considerations set out in Minn. Stat. § 518.17, which the court is required to weigh and evaluate in making a decision as to the physical custody and residence of minor children. For very young children, the court will not give much if any weight to a child's expressed preference. However, the older the child (for example a 15 year old), the more weight is likely to be given to a child's stated preference.
The court will also endeavor to determine not only the child's preference, but the reasons behind the child's preference. Further, the court will look with
extreme displeasure at parents who have tried to influence a child's decision about where they want to live.
Although they perhaps comprise only a portion of the stated "best interests" factors, doing things like attending school conferences, being present at children's games or activities, arranging for and being at healthcare appointments, and truly being involved in the children's lives, will carry a tremendous amount of weight with most judges.
Do I really need a prenuptial (antenuptial) agreement?
People sometimes think that prenuptial or antenuptial agreements are only for the very wealthy. In truth, if you own real estate or have children from a prior relationship, if you own any retirement benefits or investments, or if you own any business interests, you should seriously consider having one prepared in advance of the marriage (or possibly even a post-nuptial agreement after the marriage).
The reasons for this are many. For couples divorcing or legally separating in Minnesota, the law requires a judge to assume that everything a couple owns is a "marital asset" which must be “equitably” divided between them. Even if you owned an asset prior to the marriage, or received it as a gift from someone other than your spouse, or even if you inherited it, at the time of any subsequent court proceeding, the burden is squarely on you to prove it. This may not be as simple or as easy as you may think. Memories fade and records sometimes disappear or are lost.
Real estate can present special problems. If the property was refinanced or changes made (was that new carpet a repair or an improvement?) the waters can and often are muddied as to what is non-marital and what is marital. Further, with the way real estate is divided under the so-called “Schmitz" formula, a spouse who owned real property prior to the marriage may only receive the percentage of equity they owned on the date of the marriage, applied to the property's current fair market value, and any increase in value beyond that may be considered a marital asset subject to division. For this reason the value of the property then and now, and the amount of debt must be established. This can require multiple appraisals and expert opinions, along with expert testimony and witness fees.
For investments, even if they were owned at the time of the marriage, any interest or dividend income, as well as any market gains may be considered a marital asset, subject to division.
For business interests, if they increase in value during the marriage, any increase may be considered a marital asset, especially if one spouse was actively involved in the operation or management of the business.
Having an properly drafted and valid antenuptial agreement may eliminate disputes over these issues, and provide that an asset remains an entirely “non-marital” asset of one spouse.
Antenuptial agreements allow the parties themselves to define what will and what won't constitute a “marital” asset subject to being divided in the future. For example, income received during the marriage, existing or any future retirement benefits, business interests, trust income, etc. They can also limit or prevent a spouse from seeking payment of spousal maintenance or alimony.
Most antenuptial agreements also make express provisions as to how assets are to be treated not only in the event of a dissolution or legal separation, but also upon the death of one spouse. This way provisions can be made to protect the interests of any prior born children of the parties.
Another benefit of having a valid antenuptial agreement is that it requires the parties to sit down together and honestly disclose to each other, in complete and specific detail, their respective incomes, assets and liabilities - before the marriage.
Will the other side be ordered to pay my attorneys fees?
In most family law matters, the judge assigned to the case is afforded a large amount of discretion in deciding whether or not to order one party to pay all or a portion of the other side's attorney's fees and costs. The court will generally look at the ability of each party to afford and pay their own attorney's fees and costs.
Where there is a large disarity in the parties' respective incomes and financial resources, or where one party clearly lacks the ability to pay their own fees and costs, the court can order the other party to pay all or a portion of that party's legal fees and expenses.
Futher, where one party has acted in a manner so as to increase the cost or length of the proceeding, the court has the authority to make an award of "conduct-based" attorneys fees and costs. See Minnesota Statutes Section 518.14.