What is a dissolution of marriage?

Dissolution of marriage, or divorce, is a legal proceeding to end a marriage relationship. The dissolution decree will also deal with custody, visitation, child support, spousal maintenance (alimony), property division, attorney fees and court costs.

What are the grounds for a divorce?

Minnesota is a no-fault state, so there is only one ground for dissolution of marriage - an irretrievable breakdown of the marriage. You must state that your marriage is irretrievably broken, with no chance of reconciliation.

What is a legal separation?

The paperwork and cost is the same for a divorce and legal separation. The only difference is that you remain married with a legal separation. Otherwise, the court determines all the issues as if it were a divorce.

What are the requirements to file for divorce in Minnesota?

You or your spouse must reside in Minnesota for 180 days before either person can file for divorce.

What are my rights before the divorce is started?

Unless there is a court order, you and your spouse have the same legal rights, whether you are living together or are separated. This means that if there are children of the marriage, you and your spouse have equal rights to decide where the children live, go to school, what doctor they should see, etc.

Likewise, you and your spouse have equal rights to sell, give away, or dispose of any property that you own as a couple. This means that either person can withdraw money from a joint bank account, charge on a joint credit card, etc. Of course, neither party can sell anything that is in the other's name, cash the other party's checks or sell real estate that is in both names.

Each of you continue to be responsible for certain debts made by the other such as medical bills, household needs for the family and children, joint credit cards, etc.

How do I start a divorce proceeding?

Because Minnesota is a no fault divorce state, one party does not gain an advantage by filing first. One spouse is the Petitioner, the other the Respondent. A divorce is started when the Petitioner has the Summons and Petition personally served on the Respondent. The Respondent then has 30 days to serve and file an Answer. If the Respondent does not do so, he/she is in default and the Petitioner can proceed with the divorce without further notice to the Respondent.

Once a divorce is started, neither party may dispose of any assets except for the necessities of life, for the necessary generation of income or preservation of assets, or by agreement in writing or to retain an attorney for the divorce. Also, all currently available insurance coverage must be maintained and continued without change in coverage or beneficiary designation.

There is also a new requirement that the parties must try mediation, unless there is domestic abuse. If you or your children have been hurt or threatened by your spouse you do not have participate in mediation. You must immediately tell your attorney or the mediator if this is the case.

What is mediation?

Mediation is a process where the parties try to work out an agreement between themselves with the help of a mediator. The mediator works with the parties to identify the issues and to reach their own agreement. Mediation can be useful because the you and your spouse determine the outcome of your divorce rather than having a judge decide. Mediation is designed to give both of you an opportunity to safely express yourselves. If you do not feel you have equal power or if you feel unsafe, you can stop the mediation process at any time without reaching an agreement.

What is a temporary hearing?

After the divorce is served and filed, but before the final decree is issued, it is often necessary to get a court order setting out temporary custody, support and living arrangements, among other things. Either party can request a temporary hearing. The hearing is held only with motion papers and affidavits, there is generally no oral testimony from the parties at this hearing. The judge will look at all of the papers filed by both sides, the attorneys will speak for the parties and the judge will make the decision.

What are the types of custody?

There are two types of custody, legal custody and physical custody. Legal custody means the right to determine the child's upbringing, including education, health care and religious training. Physical custody means the routine daily care and control and the residence of the child.

Joint legal custody means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care and religious training. The courts prefer to award joint legal custody, unless it determines that the parties cannot cooperate and agree on these decisions, or if there has been domestic abuse.

Joint physical custody means that the routine daily care and control and the residence of the child is structured between the parties. The court will grant joint physical custody if the parents agree.

If the parents cannot agree on the custodial arrangement, the court may order a custody evaluation and/or a guardian ad litem for the children to determine the "best interests of the child." These people will gather information from the parents and others regarding the family situation. Psychological evaluations and chemical dependency evaluations may also be done on the parties, if appropriate. The evaluator and guardian will make a recommendation to the judge regarding custody and/or visitation.

What are my visitation rights?

The parent who does not have custody is usually granted the right to visit the children. Visitation is determined by what is in the best interests of the child.

How much child support can I get?

Child support is determined according to a formula set by statute. It is based on the net income of the non-custodial parent. You generally cannot negotiate the child support amount, as it is for the benefit of the child and should not be used as a bargaining chip in the divorce. If you have joint physical custody, the guidelines are still applied, but the actual amount of time each parent has the child is taken into consideration in determining what each parent owes the other.

Child support can be modified up or down, by either party if they can show a substantial change in circumstances such as change in income that is at least 20 percent and at least $50 per month higher or lower than the current support order, health coverage is no longer available, etc.

What is maintenance?

Maintenance, also known as alimony, is a regular payment of money from one spouse to the other. There are several factors that the court looks at in determining whether maintenance is appropriate, such as the length of the marriage, the age of the parties, financial resources of the parties, the possibility of becoming self supporting, loss of earnings or retirement benefits given up by one spouse, the needs of one spouse and the ability of the other to pay maintenance. The issue of maintenance and its application is specific to each individual case.

How long do I have to pay spousal maintenance?

In some cases an award of maintenance is permanent. This means that it is paid until the former spouse remarries, either spouse dies or the court modifies the order. In other cases the award of maintenance is temporary or rehabilitative. This means that maintenance is paid for a set period of time to enable the former spouse to become more financially stable, obtain an education, etc. There is no set formula for maintenance, it depends on the individual circumstances.

How does the court divide our property and bills?

In Minnesota, the property and bills are divided on an equitable basis. This means that the court can consider the individual circumstances of each case, such as the income and monthly expenses of the parties, which parent has custody of the children, etc. in dividing the property.

There are two types of property - marital and nonmarital. Marital property is property acquired during the marriage. Non-marital property is property acquired before the marriage or by gift or inheritance to one party and not the other. In order to prove property is nonmarital the party must be able trace the property to a nonmarital source. Generally, each party can keep their nonmarital property. However, in some cases the court will divide even nonmarital property.

We aren't married but have a child together,
what rights does the father have?

If the mother of a child is not married to the father when the child is born, she automatically has sole physical and legal custody of the child until there is a court order stating otherwise.

The parents often sign a Recognition of Parentage, which basically states that both parents agree who that father is. This is used to speed up the child support process, but does not automatically give the father any rights to custody or visitation. A paternity action must be started in order for the father to assert his rights. The same custody definitions and "best interests" standard that is used in dissolutions is used in paternity actions. A temporary order can be issued just like in a dissolution action to set out temporary custody, visitation, support, etc.

What do I do if my spouse is abusing or harassing me?

If you or your children are victims of domestic abuse, there are many victim assistance organizations ready to help you. I have included a list of some of those organizations in the Community Resources section of this site.

An order for protection (OFP) is a court order that orders the abuse not commit acts of domestic abuse such as shoving, pushing slapping, punching, kicking, pulling hair, choking, stabbing, shooting, locking you in a room, threatening to harm you, etc. It can also order the abuse removed from the home you share together. It can order the abuse not to have contact with you. It can also order temporary custody, visitation, child support, maintenance and use of property.