Frequently Asked Questions Regarding Divorce in Minnesota

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  1. What is the difference between divorce and dissolution of marriage in Minnesota?
    The term divorce was used universally until the mid-1970’s.  At that time the State of Minnesota and many other states changed the terminology of divorce to “marriage dissolution” (i.e. the marriage is dissolved.)  Family law is the entire subject area relating to the relationships of husbands and wives, parents and children.  It is also sometimes called domestic relations.
  1. How long will it take to get divorced in Minnesota?
    How long a case might take depends on you and your spouse.  A marriage dissolution can be obtained in as little as a month or so if you and your spouse are in complete agreement.  Your location may also affect the length of your case because some courts are busier than others. We practice mostly in Carver, McLeod, Sibley, Meeker, and Wright Counties.  In those locations, most uncontested dissolutions are completed within a few months.  On the other hand, contested cases can take many months, and may easily run a year or longer.
  1. What is a dissolution of marriage proceeding and how does it differ from a legal separation?
    A legal separation is a determination at a given point in time of the legal rights of persons who are married but are or will be living separately.  It is not, as is commonly believed, a “trial separation” period during which parties contemplate a possible dissolution of marriage, but also not a “final” determination.  A dissolution of marriage proceeding terminates the marriage; it is a divorce.  Each proceeding has as its object the financial disentanglement of two parties, determination of child custody and support if applicable, etc.  Legal separations are uncommon, as there are other options available for obtaining a temporary order from the court, and a dissolution of marriage proceeding may later be needed, at additional time and expense, to provide finality.
  1. Are there alternatives to litigation or a contested battle in court?
    Certainly!  In fact, the vast majority of cases do settle short of going to trial.  Alternatives may include face to face meetings, written negotiations, mediation, early neutral evaluations (in which case a neutral expert may be asked to size up the case and outline settlement recommendations based on a range of probable outcomes), or other options.  You should discuss with your attorney which options might fit best in your particular case.
  1. Is it okay to “date” during my divorce case?
    This is a complicated question because it has so much to do with both your children (if any) and your spouse.  It is not advisable to see anyone romantically in the presence of your children during the pendency of your dissolution of marriage.  What you do out of the presence of your children will usually not be considered by a court in determining child custody or parenting time unless it affects the children.  Please beware, however, that dating someone new may antagonize your spouse and make an agreement or settlement much more difficult to reach.  We encourage those going through a divorce to use discretion in their romantic life and in their other actions.
  1. Are grounds for divorce required in Minnesota?
    Yes, but perhaps not in the sense that you may think.  All that is necessary for a court to dissolve the marriage is for at least one party to allege that there has been an irretrievable breakdown of the marriage relationship.  “Fault” is not legally relevant if the only issue is how to divide up property.
  1. What is non-marital property?
    Minnesota is an equitable distribution state, as opposed to a community property state.  All property in your marriage, whether it is real estate or personal property, cash, motor vehicles, retirement accounts, etc. will be labeled as non‑marital or marital property.  Non-marital property is that property for which it can be clearly demonstrated:
    • was owned prior to the marriage (to the extent paid for);
    • is excluded by a valid prenuptial agreement;
    • was received by way of a personal injury settlement (with certain exceptions);
    • was received by gift or inheritance by one party alone from a third party source; or
    • was obtained in exchange for any of the above.

As a general rule (though not always, depending on a number of factors), marital property and debts will be split equally, and non-marital property will be allocated to the appropriate spouse alone.  Unless the property can be characterized as non-marital property, it may not matter in whose name the property is held.  This can be a complicated area and you and your attorney should discuss it thoroughly.

  1. Should I change the locks, take my spouse’s name off the credit cards and bank accounts, or move out and take property with me?
    This requires a lawyer-like answer: it depends.  In some cases, it would be a terrible thing to do to your spouse, and may hurt your case in the long run.  In other cases, it may be absolutely necessary to protect you, your family, and your assets.  It is ordinarily advisable to take immediate steps to freeze any further joint extensions of credit (such as credit cards, home equity credit lines, etc., which are in both names) so that joint debts are at least getting no worse.  If you have any question, consult with your divorce lawyer before taking any actions.
  1. What are joint legal custody and joint physical custody?
    Joint legal custody means that both parents have equal rights and responsibilities, including the right to participate in major decisions in determining the children’s upbringing, such as education, health care and religious training.  There is a presumption in the law in favor of joint legal custody.Joint physical custody, or equal or nearly-equal parenting time, actually involves alternating the children’s place of residence between parents.  This has become much more common in recent years, though it usually requires more cooperation from all parties involved to work effectively for children.  There is no universal agreement among parents, psychologists, attorneys, judges, and others concerning joint physical custody or parenting time arrangements.  In many cases it may work and be very beneficial, and in many other cases it may be inappropriate.  There is no one “right” answer for every situation.
  1. How old does a child have to be to choose which parent he or she wants to live with?
    This could be an entire article topic, but here is the brief answer:  In Minnesota, a child may not legally choose until he or she turns 18.  But, if a child is of sufficient maturity when custody is first determined, he or she will be given the opportunity to express a preference.  The judge or someone designated by the judge may interview your children and then the judge may take those opinions into consideration, along with many other factors.  The older the child and the more sensible the child’s reasons, the more the judge is likely to pay attention.  Custody will not usually be granted or changed solely because a child wants it unless the child is nearing adulthood.  Keep in mind also that very different standards apply to modifications of custody than would apply to an initial determination of custody.
  1. What is spousal maintenance (alimony)?
    Spousal maintenance, or alimony, is the payment of money by one spouse to the other on a regular basis when it is apparent that the recipient cannot otherwise meet his or her reasonable needs.  It applies most often in “traditional” marriages, where one spouse has been out of the work force for an extended period of time, such as to raise a family.  Unlike child support, which is determined based on a formula, the factors used by a court in deciding spousal maintenance are very subjective and imprecise; results are far less predictable.  Ask your attorney if you think maintenance may be appropriate in your case.
  1. May I take my children out of state?
    A parent ordinarily may do so, if for vacations or to visit friends or relatives for a short period of time.  The permanent residency of children in Minnesota cannot be moved from the state unless court permission or consent of the other parent is first obtained.  However, vacations or visits need not be considered a change of permanent residency, and therefore you and your children are normally free to cross the state border unless a court order to the contrary exists.  It’s generally always recommended that you notify the child’s other parent if doing so.
  1. How will child support be paid or collected in Minnesota?
    In Minnesota, child support is frequently paid to a custodial parent through the state or a county social services agency.  Child support payments are typically withheld directly from wages, like tax withholdings, though other options are possible.  If payment is not made, there are enforcement procedures that have been established to help ensure that the children will be supported.
  1. Once legal rights and obligations are established in my divorce, can the terms ever be changed?
    In Minnesota, certain aspects of the divorce, such as the property division, are final after a certain period of time has passed.  Other issues, such as child custody, parenting time, child support, and spousal maintenance, may be subject to change.  But different standards apply to modifications than to initial determinations; for example, you may have to show that the children are endangered to modify custody, or that a substantial change in circumstances has occurred to modify support or maintenance.