This Article is intended to
provide only a summary overview of the issues related to
divorce. However, since divorce laws are forever
changing, the information on this page and on this web
site may occasionally become outdated. You should always
consult with a lawyer on your legal issues.
RESIDENCY: One spouse must reside in the state
of Minnesota for at least 180 days prior to filing a
divorce. You may file the divorce in the county where
either party resides. [Minnesota Statutes §518.07 and
Minnesota Statutes §518.09].
NO FAULT: Minnesota is a "no fault" divorce
state. In the not so distant past, divorces could only
be granted for specified reasons such as infidelity or
abandonment. This resulted in much highly emotional
litigation that pitted one spouse against another with
each painting the other as the "bad guy." Minnesota,
like most states, has eliminated fault from it's
statutes. Currently, for a divorce to be granted there
must only be an irretrievable breakdown of the marriage.
[Minnesota Statutes §518.06].
LEGAL SEPARATION: No grounds for a legal
separation are needed. If one or both parties petition
for a decree of legal separation and neither party
contests the granting of the decree nor petitions for a
decree of dissolution, the court shall grant a decree of
legal separation. Any party may turn a legal separation
into a divorce by filing an Answer requesting the
modification. [Minnesota Statutes §518.06].
DIVORCE-WHAT TO SERVE: A divorce is
commenced when one party serves a copy of a Summons and
a Petition for Dissolution of Marriage. "Serving" these
documents means that they must be provided to the other
side in a fashion required by Court rules. In Minnesota
service may be completed "personally" by having any
person, except the filing party, hand the documents to
the non-filing spouse or by handing the documents to
another person living with the non-filing spouse who is
of suitable age and maturity. Once service is complete,
an affidavit must be filed with the Court. The affidavit
is signed by the person completing the service stating
that he or she provided the papers to the other party.
Personal service may be avoided if your spouse is
willing to admit service. Service can be admitted by
having the non-filing spouse sign before a notary a
document that admits they received a copy of the Summons
and Petition.
If you do not know where your spouse resides, you may
ask the Court to allow "substitute service". To qualify,
you must demonstrate to the Court that you have tried to
locate the other party without success and that you seek
to serve them by publication. If the Court agrees to
allow substitute service, a short notice may be
published in a legal newspaper in the county where the
other party was last known to reside. Service is
complete after the notice has run for three consecutive
weeks.
WHAT TO FILE: The original Summons, Petition
and an affidavit of service must be filed with the Court
with an appropriate filing fee top commence the matter
in the Court system. Generally speaking, filing fees in
Minnesota range from $225 to $250.
PUTATIVE SPOUSE: If a person who has lived
with another person and believes, in the good faith,
that they are married, that person is considered a
putative spouse until knowledge of the fact that the
person is not legally married terminates that status.
Any putative spouse has the same rights and obligations
as if they had been married until the person obtains
knowledge that they are not legally married. These
rights may even include the right to spousal
maintenance. [Minnesota Statutes §518.055]
SIMPLIFIED DIVORCE PROCESS: A simplified
divorce process is available in circumstances where the
parties have: (1) no living minor children have been
born to or adopted by the parties before or during the
marriage, unless someone other than the husband has been
adjudicated the father; (2) the wife is not pregnant;
(3) they have been married fewer than eight years as of
the date they file their joint declaration; (4) neither
party owns any real estate; (5) there are no unpaid
debts in excess of $8,000 incurred by either or both of
the parties during the marriage, excluding encumbrances
on automobiles; (6) the total fair market value of the
marital assets does not exceed $25,000, including net
equity on automobiles; (7) neither party has nonmarital
assets in excess of $25,000; and (8) neither party has
been a victim of domestic abuse by the other.
A couple qualifying under all of these criteria may
obtain a divorce decree easily by filing a sworn joint
declaration with the signature of both parties
notarized. Forms for this process are available through
the Court Administrator's Office. [Minnesota Statutes
§518.195]
PARENTING CLASS REQUIRED: In any divorce
proceeding where custody or parenting time (visitation)
is contested, the parents of a minor child shall attend
an orientation and education program relating to
co-parenting and co-parenting skills. Only upon request
of a party and a showing of good cause, may the court
may excuse the party from attending the program. If past
or present domestic abuse is alleged, the court may not
require the parties to attend the same parent education
sessions. [Minnesota Statutes §518.157]
PROPERTY DISTRIBUTION: Minnesota requires an
equitable division of the marital property of the
parties without regard to marital misconduct. Equitable
does not mean mathematically equal and the court must
base its division on all relevant factors including the
length of the marriage, any prior marriage of a party,
the age, health, station, occupation, amount and sources
of income, vocational skills, employability, estate,
liabilities, needs, opportunity for future acquisition
of capital assets, and income of each party. The court
must also consider the contribution of each 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. It shall
be conclusively presumed that each spouse made a
substantial contribution to the acquisition of income
and property while they were living together as husband
and wife. The valuation date for the marital assets is
the day of the initially scheduled prehearing settlement
conference, unless a different date is agreed upon by
the parties, or unless the court finds that another date
of valuation is fair and equitable. [Minnesota Statutes
§ 518.58]
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NON-MARITAL ASSETS. "Nonmarital property"
means property real or personal, acquired by either
spouse before, during, or after the existence of their
marriage, which (a) is acquired as a gift, bequest,
devise or inheritance made by a third party to one but
not to the other spouse; (b) is acquired before the
marriage; (c) is acquired in exchange for or is the
increase in value of property which is described in
clauses (a), (b), (d), and (e); (d) is acquired by a
spouse after the valuation date; or (e) is excluded by a
valid
antenuptial contract. [Minnesota Statutes §518.54].
The Court may divided even non-marital assets if it
finds that either spouse's resources or property are so
inadequate as to work an unfair hardship. [Minnesota
Statutes § 518.58]
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VALUING PENSIONS. Pensions, retirement plans,
401K and other deferred compensation is marital so long
as it was acquired during the marriage. The Court has
the power in a divorce to appoint a qualified person
experienced in the valuation of pension benefits and
rights to function as an expert witness in valuing
pension benefits or rights. [Minnesota Statutes §
518.582]
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ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either
spouse may be ordered to pay alimony, without regard to
marital fault, if it finds that the spouse seeking
maintenance: (a) lacks sufficient property, including
marital property apportioned to the spouse, to provide
for reasonable needs of the spouse considering the
standard of living established during the marriage,
especially, but not limited to, a period of training or
education, or (b) is unable to provide adequate
self-support, after considering the standard of living
established during the marriage and all relevant
circumstances, through appropriate employment, or is the
custodian of a child whose condition or circumstances
make it appropriate that the custodian not be required
to seek employment outside the home.
If the Court determines spousal maintenance (alimony)
is appropriate, it must determine the length of time and
amount by considering all relevant factors which may
include: (a) the financial resources of the party
seeking maintenance; (b) the time necessary to acquire
sufficient education or training to enable the party
seeking maintenance to find appropriate employment; (c)
the standard of living established during the marriage;
(d) the duration of the marriage and, in the case of a
homemaker, the length of absence from employment; (e)
the loss of earnings, seniority, retirement benefits,
and other employment opportunities forgone by the spouse
seeking spousal 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
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.
[Minnesota Statutes §518.552]
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NAME CHANGE: The court may allow either spouse
to change their name as part of a divorce.
MEDIATION. If the parties have dispute
regarding custody of a child or parenting time, the
matter may be set for mediation of the contested issue
prior to, concurrent with, or subsequent to the setting
of the matter for hearing. This must take place unless
the court determines that there is probable cause that
one of the parties, or a child of a party, has been
physically or sexually abused by the other party.
[Minnesota Statutes §518.619]
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CHILD CUSTODY: Child custody is determined
based on the "The best interests of the child" after an
evaluation of the following: (1) the wishes of the
child's parent or parents as to custody; (2) the
reasonable preference of the child, if the court deems
the child to be of sufficient age to express preference;
(3) the child's primary caretaker; (4) the intimacy of
the relationship between each parent and the child; (5)
the interaction and interrelationship of the child with
a parent or parents, siblings, and any other person who
may significantly affect the child's best interests; (6)
the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable,
satisfactory environment and the desirability of
maintaining continuity; (8) the permanence, as a family
unit, of the existing or proposed custodial home; (9)
the mental and physical health of all individuals
involved; except that a disability of a proposed
custodian or the child shall not be determinative of the
custody of the child, unless the proposed custodial
arrangement is not in the best interest of the child;
(10) the capacity and disposition of the parties to give
the child love, affection, and guidance, and to continue
educating and raising the child in the child's culture
and religion or creed, if any; (11) the child's cultural
background; (12) the effect on the child of the actions
of an abuser, if related to domestic abuse that has
occurred between the parents or between a parent and
another individual, whether or not the individual
alleged to have committed domestic abuse is or ever was
a family or household member of the parent; and (13)
except in cases in which a finding of domestic abuse,
the disposition of each parent to encourage and permit
frequent and continuing contact by the other parent with
the child. [Minnesota Statutes § 518.17]
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CHILD SUPPORT: The court may award child
support for the of a child based on the child support
guidelines set out in statutes. The guidelines are based
on the net monthly income of the obligor. [Minnesota
Statutes §518.551]
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PREMARITAL AGREEMENT: A man and woman of legal
age may enter into an antenuptial or prenuptial contract
prior to marriage. To be valid, the following must be
present: (a) there is a full and fair disclosure of the
earnings and property of each party, and (b) the parties
had an opportunity to consult with legal counsel of
their own choice. A prenuptial contract determines only
what rights each party has in the nonmarital property in
the event of a divorce or legal separation. The
agreement must be in writing with a statement of assets.
[Minnesota Statutes § 519.11]
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