Dissolution of Marriage
Having marital difficulties is a complicated, emotional, and expensive experience. However, much of the fear of a divorce proceeding can be alleviated by knowing how the process works and about some of the laws that deal with divorce actions.
In Minnesota a divorce case is referred to as “an action for dissolution of marriage.” Minnesota does not require you to have grounds to obtain a divorce. If one of the parties to a marriage wishes a divorce, then the Court will grant a dissolution of marriage even over the objection of the other party. We refer to this as a “no-fault divorce.”
A divorce action is started by one party serving a Summons and Petition for Dissolution of Marriage on the other party. These legal documents contain certain general information, including the name and address of the parties, the date and place of their marriage, an affirmation that they have lived in Minnesota for at least six (6) months before starting the dissolution action, the names, dates of birth and ages of any minor children and the legal description of any real property. The Summons and Petition must be served personally upon the “Respondent.” It really makes no difference who starts the divorce and no advantage is gained by being the Petitioner or the Respondent. Once the Summons and Petition for Dissolution of Marriage are served, a divorce action has been commenced and the Respondent has thirty(30) days in which to respond be filing what we call an Answer.
The Beginning Stages of the Divorce:
Once the Summons and Petition are served upon the Respondent, certain restraining orders come into place. Simply by starting a divorce, Minnesota law directs that neither party may dispose of any assets, except for normal living expenses or with mutual consent; neither party may harass the other; and all insurance coverage must be maintained and continued without dissipating their assets, harassing the other, or changing or dropping insurance.
Many times in a dissolution action, it becomes necessary during the initial phase of a divorce to obtain certain Temporary Orders from the Court. It is possible to do an Application for Temporary Relief seeking a Temporary Order addressing such issues of child custody, visitation, child support, alimony, temporary division of property and possession of the homestead. Whether you need to bring such a Motion for Temporary Relief will depend on your individual circumstance.
Not all cases require the filing of a temporary motion. Many times the parties are able, on a temporary basis, to work out such issues. You should simply be aware that such an option is available to you.
The Divorce Process:
After the divorce papers are served upon the Respondent, usually there is an exchange between the attorneys of financial information surrounding the marriage. This is called formal “Discovery.” The parties exchange written questions and obtain copies of various documents in order to ascertain the financial circumstances of the parties.
Under normal circumstances, after information has been exchanged, the parties also exchange settlement proposals. The vast majority of divorce actions are resolved by an agreement called a Marital Termination Agreement (MTA) in which the parties resolve all the issues in their divorce. A MTA is simply a contract for divorce. The contract outlines how the parties have resolved all issues, is presented to the Court and, if approved by the Court, becomes the final Judgment in the case.
If the parties are unable to settle their case, the case is ultimately scheduled for a trial before a Judge without a jury. At the trial witnesses are called to testify. These witnesses certainly include the parties but can include others. If custody and visitation are issues, frequently there will be neighbors, friends and relatives who will testify regarding the relationship of the parties with their children. The Court may also appoint a Guardian Ad Litem (GAL) to undertake an investigation regarding the children and make a recommendation regarding custody. If financial issues are in dispute, bank officials, appraisers, pension plan evaluators and other financial experts may need to be retained and may give testimony at a trial.
At the close of a trial, the Judge does not announce the decision. Instead, the Judge will usually take the matter under advisement and issue a decision within ninety (90) days. During that ninety (90) day time-frame, the parties’ attorneys usually submit Memorandums and proposed Orders for the Judge to consider. The Judge then reviews these written submissions, trial exhibits and his/her notes in making a decision. This decision is then mailed to the parties through their attorneys.
It is always difficult to address the issue of how long a divorce will take from beginning to end. Each case is different. A good rule of thumb would be about six (6) months. If the parties are unable to reach an agreement, then six to nine months is more realistic.
Issues in Dissolution Cases:
- Child Custody
- Decision-Making Responsibility. The decision making responsibility gives a party the right to decide the major decisions of a child’s life, including education, heath care and religious training. There is a presumption in the law that the parties will jointly share this function. This means that they would each have equal access to medical, educational and religious information regarding the children and are required to consult with one another about these types of issues. This is called “joint decision making responsibility.”
- Primary Residence. The primary residence of a child is the determination of where the child will reside. In determining where the primary residence will be awarded, the Court must consider a number of factors and consider what is in the “best interest” of the child. These factors include:
- The wishes of the parent;
- The reasonable preference of the child if the child is of a sufficient age to express a preference;
- The intimacy of relationship between each child and parent;
- Interaction and inter-relationship of the child with parents, siblings and other significant individuals who will affect the child’s best interest;
- The child’s adjustment to home, school and community;
- The length of time the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity;
- The permanency of the family unit;
- The physical and mental health of the parties;
- The capacity and disposition of the parties to give the child love, affection and guidance;
- The child’s cultural background;
- The effect on the child from the actions of an abuser;
- The willingness of each parent to participate in the visitation process; and
- The child’s primary caretaker. The primary caretaker includes an analysis of who has had responsibility for the following types of parental duties:
- Preparing and planning meals;
- Bathing, grooming and dressing;
- Purchasing, cleaning and caring for clothing;
- Medical care;
- Arranging for social interaction;
- Arranging alternate daycare;
- Putting the child to bed at night, attending to the child’s needs in the middle of the night, and waking up with the child in the morning;
- Discipline and teaching general manners and toilet training;
- Education, including religious, cultural and social; and
- Teaching elemental skills reading, writing and arithmetic.
- Parental Time. As with custody, parenting time is established by a determination of what would be in the child’s “best interests.” Schedules can range from the very open schedules (such as reasonable parenting time upon reasonable notice), to a more rigid specific schedule, including a location for the exchange and the individuals who will be present at the exchange. What is necessary in a schedule depends upon the nature of the parties’ relationship and their history, including whether there has been abuse. Parenting time can occur through a Safe Exchange Center which monitors the exchange and provides a safe environment either for the visitation itself or for the exchange associated with visitation.
- Child Support
- Minnesota Statutory Guidelines. There have been some significant changes in how we compute child support effective January 1, 2007. We now consider the income of both parents and use a formula established by the legislature.
- Deviation From the Child Support Guidelines. A party can seek a deviation from the Child Support Guidelines. Some of the factors that a Court will consider for deviation include the custody and visitation schedule established by the Court, the physical health of the parties, and other factors outlined in the law. You must keep in mind that in most cases, Judges follow the guidelines in establishing support and will not vary from it.
- Health Insurance. Usually the individual paying support will have an obligation to provide health insurance for the children if health insurance is available through work. Normally parties divide medical, dental, orthodontic, optical or deductible expenses not covered by insurance.
- Tax Exemptions. The Judge has the authority to allocate federal and state income tax exemptions involving children. If an individual is paying a significant sum of money for support, that individual normally is granted the exemptions associated with the children. However, a non-custodial parent cannot claim a child as an exemption unless the Court orders it and then only if he or she is current in child support payments at the end of the year.
- Child Care Costs. In addition to support, the Court has the authority to require individuals to divide work or education-related childcare expenses of the children. The Court takes into consideration the income of the parties, the level of child support and the cost of daycare in determining the appropriate share each should pay for daycare expenses.
- Property Settlement
- Type of Property. There are two different kinds of property for divorce purposes: marital and non-marital property. Non-marital property is property owned by you prior to the marriage or received by you as a separate gift or inheritance. In addition, certain parts of personal injury settlements may be non-marital property.
Marital property is all other property acquired by the parties during the course of their marriage. In determining who receives what property, the Court does not consider the financial contribution of the parties during the marriage. The Court must assume that the parties equally contributed towards the purchase and maintenance of marital assets.
In a divorce award, a party will usually receive their non-marital property. Thereafter, the remaining marital property will be equally divided between the parties. To the extent that the property cannot be equally divided, or one person is allocated more in terms of property than the other, the party receiving more property will usually owe a cash settlement to the other party to equalize the division of assets.
- Debts. Debts are also part of the property distribution that must occur in a dissolution action. Debts may be marital or non-marital and will be divided equally in the same manner as property is distributed.
- Maintenance (Alimony)
- What is it? Maintenance, as alimony is called in Minnesota, is a periodic payment from one spouse to the other for the spouse’s care and support. While child support is designed to pay for the care of the children, spousal maintenance is designed to pay for the care of the spouse who cannot provide for all of their own needs.
- The Legal Requirements. A party requesting maintenance must show financial need for maintenance before a Court may award maintenance. A Judge will consider a number of factors including age, educational experience, work history and medical condition in determining whether maintenance is appropriate. Thereafter, the Court will determine if the party who may be required to pay maintenance has the ability to pay. Finally, the Court must address whether maintenance should be permanent or temporary.
Maintenance is a complicated issue. Many factors go into determination of maintenance and the ultimate determination by the Court on maintenance is difficult to predict.
- Attorney’s Fees and Costs. Each party is normally responsible for paying their own attorney’s fees and costs. On occasion Courts will direct one party to pay the others attorney’s fees and costs. However, your obligation to pay your attorney’s fees is personal to you and regardless of what the Court determines with regard to reimbursement for your expenses, you will have the obligation to pay your attorney’s fees.
Divorces can be difficult financially and emotionally. We will do the best that we can to help you through this difficult situation. We will give you advise that you can rely upon and have the experience that you need to be properly represented.
DISCLAIMER INFORMATION: THE INFORMATION CONTAINED IN THIS SITE IS DESIGNED TO PROVIDE GENERAL INFORMATION AND IS NOT LEGAL ADVICE. YOU SHOULD NOT DRAW LEGAL CONCLUSIONS OR RELY UPON THE INFORMATION CONTAINED IN THIS SITE AS LEGAL ADVICE OR AN OPINION ON THE LAW OR THE MERITS OF YOUR CASE. THE LAW CONSTANTLY CHANGES AND YOU SHOULD DISCUSS THE INDIVIDUAL FACTS OF YOUR CASE WITH AN ATTORNEY TO OBTAIN COMPETENT LEGAL ADVICE.