Getting a Divorce
A BASIC GUIDE TO MINNESOTA LAW
Revised October 2013
TABLE OF CONTENTS
Click here to view entire booklet.
Effective August 1, 2013, Minnesota authorized legally recognized same sex marriages. In addition, as of August 1, 2013, Minnesota legally recognizes same sex marriages that are legally recognized where they occurred. For example, if a same sex couple was legally married in Iowa, the marriage is also legal in Minnesota.
All of Minnesota’s laws and procedures about marriage and divorce apply equally to same sex couples. Minnesota also permits a same sex couple who were married in Minnesota, but who now live in a state that does not recognize that marriage, to get a divorce in Minnesota.
Before a same sex couple gets married or divorced, they may want to talk with an attorney, especially if they were married in another state.
Effective August 1, 2013, marriages in Minnesota are now called a “civil marriage.” The law also recognizes same sex marriage, but the term “civil marriage” applies to all marriages legally recognized in Minnesota. Where this book uses the word “marriage,” it is the same as a civil marriage.
Under Minnesota law, divorce is called dissolutionof marriage. Divorce cases are decided in family court. The court "dissolves" or ends the marriage when the final papers are entered in the court's records. These final papers are called the Judgment and Decree. The Judgment and Decree contains the court's final decision on other questions too. These include custody, parenting time, child support, and division of debts and property.
Many people think that when a couple wants to live apart they have to get a "legal separation." This is not true. Often couples live apart for a while before they decide to get a divorce. This is not "illegal." Legal separations are for people who do not want a divorce (usually for religious reasons). They still need a legal paper to settle custody, support, and property questions. The court makes the same kinds of decisions that it makes in a divorce. However, the couple remain married, and the division of property is not final.
A legal separation is similar to a divorce. It takes as long as a divorce. If the court grants a legal separation and the husband or wife decides later to get a divorce, a new case must be started. A legal separation is not a necessary step in the divorce process. For people whose religion prevents divorce, a legal separation may be best.
A legal annulment is a decision by the court that the couple was never married. Some marriages are against the law, such as marriage between close relatives. Annulments are not necessary in such cases because, under the law, there is no marriage. Other marriages may be annulled by the court. For example
- one of the parties was mentally limited
- was too young to marry
- the couple never had sexual intercourse.
The steps for getting an annulment are similar to the steps for getting a divorce. Most people need an attorney to get an annulment.
A legal annulment should not be confused with a religious annulment. For example, a Catholic may not be permitted to remarry in the church if the church has not determined that the first marriage is null and void. This type of annulment is granted by the church, and has no legal effect according to Minnesota law. Likewise, a legal annulment or divorce may not affect how the church looks upon the marriage.
If you are married and a court of law has made no order, your legal rights are the same whether you are living with your spouse or living apart. Both spouses have the same rights.
If there are children of the marriage, each spouse has the right to decide where the children live or go to school, whether they should see a doctor, and can make other arrangements that need to be made. These decisions are left to the parents, as long as the children are not being hurt. If the children are being hurt, other people might become involved -doctors or nurses, school personnel, community workers or the police. If you do not want your spouse to take or visit the children because you are afraid the children will not be returned or will be harmed, you do not have to let the children go. However, if there is not a threat that your spouse will kidnap the children, you should think about the children's best interests and whether it would be good for them to see their other parent. If you are concerned about your spouse's visits, consider getting a custody order. If there are children who were born before the marriage and there has been no adoption or custody order, the mother has sole custody in Minnesota until there is a court order to the contrary.
Each spouse has the right to sell, give away, or dispose of any property the couple owns. For example, either person can withdraw money from a joint bank account. Either can charge on a joint credit card. There are some exceptions to this general rule. Neither spouse has the right to cash checks made out to the other spouse. Neither spouse can withdraw money from a bank account if it is in the name of the other spouse only. Neither spouse can sell a motor vehicle that is in the name of the other spouse. Neither can sell real estate that is in both names or in the name of one spouse.
A spouse isnot liable to (responsible for paying) creditors for debts of the other spouse except for necessary medical expenses and household articles and supplies used by the family while the spouses live together. A spouse is liable for credit card and other charges by the other spouse if both had agreed to be responsible to the creditor. A spouse may also be liable for credit card debt if that spouse has used the card in the past. Either spouse may close a joint credit card account at any time. In some cases, it may be wise to cancel credit cards immediately.
Neither spouse has the right to assault, rape, injure, or threaten the other. Laws against these actions apply to people even when they are married to each other.
No person has the right to hurt or threaten you or your children- not even your spouse.
The Domestic Abuse Act is a law that protects family members (and some other people too) from being physically abused, sexually abused or threatened.
Examples of physical abuse are being shoved, pushed, slapped, choked, kicked, having things thrown at you, and using a cigarette to burn your child or you.
"Threatened" means you're afraid of being immediately harmed. For example, you are being threatened if someone yells "If you don't give me the keys, I'll hit you harder than last time" or "I'll kill you if you leave." Examples might include having a gun pointed at you, a knife waved at you or having the furniture smashed.
Sexual abuse includes forcing you to have sex or any sexual touching of a child.
You can ask the court for an Order for Protection. It will order the abuser to stop all the abuse and threats. It can also order the abuser to leave the home, to stay away from your work place or school. It can provide for temporary custody, child support and use of the car or home. It can also do other things to protect you and the children. It doesn't matter whether or not you've started a divorce or if you're still living together.
You do not need a lawyer to get an Order for Protection. You can get the forms at the courthouse and the clerks of court are required to help you fill out the application. It doesn't cost anything to file the papers. You may want to call your local shelter for battered women for more help.
You can also call the police and get help from the criminal court system.
For more information, please see our bookletOrders for Protection and Harassment Restraining Orders.
Minnesota has a "no-fault" divorce law. This means it is not necessary to prove your spouse is at fault for the breakup of the marriage. It is only necessary to prove that there has been "an irretrievable breakdown of the marriage relationship." This means that there is no hope that the spouses will want to live together again as husband and wife.
Because Minnesota has a no-fault divorce law, a spouse who wants a divorce is almost certain to be granted one by the court even if the other spouse does not want a divorce.
It also means that the fault of either spouse in the breakup of the marriage cannot be considered by the court in deciding custody, division of property, or anything else.
You must be a resident of Minnesota for 180 days (6 months) before you can begin a divorce proceeding. Members of the United States Armed Forces qualify if they have kept their Minnesota residence.
CUSTODY OF THE CHILDREN
Custody is decided based upon the best interests of the minor children. The court considers many things such as
- the children's wishes
- their relationship with each parent
- how well the children are doing in their present living situation
- how long the children have been there
- the child's cultural background
- the parenting abilities of each spouse
- which parent was the "primary caretaker"
- themental and physical health of each parent and the children.
The "primary caretaker" is the parent who takes care of the children's daily basic needs before and after the separation. The court will also consider which parent is more likely to encourage a relationship between the children and the other parent. The court can grant custody to either parent. The sex of the parent is not a factor.
The court looks at whether there has been domestic abuse by one parent against the other and how the children were affected by that. The court can also consider domestic abuse between a parent and anyone else.
The court decides both legal and physical custody. Legal custody is the right to make the major decisions about the children. These include the children's religious upbringing, schooling, and medical care. Physical custody means where the children live and which parent makes the routine daily decisions. Physical custody is what most people think of when speaking about custody.
The court prefers to share legal custody between the parents. This is called joint legal custody. This means both parents must cooperate and agree on the important decisions about the children. The court does not usually grant joint legal custody if the parents cannot cooperate or if there has been domestic abuse.
The court will usually grant joint physical custody if both parties agree and it is in the child's best interests.
In some cases the court cannot make a decision about custody because the children do not live in Minnesota, or have not lived in Minnesota long enough. In those cases the court has no legal authority to decide custody.
It is difficult for a parent convicted of certain crimes of violence or abuse to get custody or parenting time. A special person called a "guardian ad litem" will be appointed to look for the best interests of the children and to make recommendations to the judge.
The law allows parents to make voluntary parenting plans. A parenting plan is a plan voluntarily designed by both parents based on the best interests of the child. A parenting plan must include a schedule of the time each parent spends with the child, who will make specific decisions regarding the child, and a way to settle disputes. An agreed upon parenting plan may use terms other than "physical" and "legal" custody but it must clearly state if the parents have joint legal custody or joint physical custody or which parent has sole legal custody or sole physical custody.
If both parents do not agree to a parenting plan, the court may create one. The court will not create a parenting plan if it finds that a parent has committed domestic abuse against the other parent or a child.
The law has changed the term "visitation" for parents to "parenting time."
"Parenting time" means the same thing as the former term "visitation." "Parenting time" is defined as the time a parent spends with a child regardless of who has custody of the child.
The law encourages both parents to remain actively involved with their children. The parent who does not have custody is usually granted the right to visit the children. Parenting time is decided by what is in the
best interests of the children
Starting on January 1, 2007, it is assumed that each parent will get at least 25% parenting time with the child.
Denying or interfering with an established parenting time schedule is a factor the court may consider when deciding on a change of custody. The court will look at the reasons why the parenting time schedule was not followed.
Grandparents may seek visitation with their grandchildren. Minnesota law also allows a person who is not a parent but who previously lived with the child for two years to ask the court for the right to visit the child. A court will grant visitation if it is in the child's best interests and if visitation will not interfere with the parent-child relationship.
Scheduled Parenting Time
If the parents cannot agree, or if one parent asks for a schedule, the court may schedule parenting time.
For example, visits may take place
- weekdays after school, weekends, and every other holiday
- during a part of school vacations
- fora longer time during the child's summer vacation.
Additional Parenting Time to Provide Child Care
Additional parenting time may be granted to the non-custodial parent to provide child care while the custodial parent is working, if this arrangement is reasonable and in the best interest of the child. In looking at whether to grant this additional parenting time/child care time, the court will consider
- The ability of the parents to cooperate
- Methods for resolving disputes regarding the care of the child, and the parents' willingness to use those methods
- Whether domestic abuse has occurred between the parties.
Courts cannot reduce child support if they order this kind of child care.
Parenting Time Expeditor
The court can appoint a "parenting time expeditor" (previously called a "visitation expeditor"). This "expeditor" is a neutral person who will help solve problems about parenting time. An "expeditor" may not be available in all counties. If an agreement is not reached, the expeditor will make the decision. The decision of the parenting time expeditor is "non-binding." This means that the court can change the decision if either party brings a motion asking the court to resolve the dispute. Until changed by the court, the parents must follow the expeditor's decision.
If a problem comes up, the expeditor will meet with the parents. The parents may also agree to meet with a mediator, social worker, or someone who can help them reach an agreement. If no agreement is reached, they may go back to court.
The court cannot require you to have your parenting time problem settled by an expeditor if
- you claim to be the victim of domestic abuse by the other party, or
- thecourt finds that you or your child has been physically abused or threatened by the other person.
You and the other parent may be responsible for paying for the expeditor. The court will decide how much each of you will pay before appointing the expeditor. If neither of you can afford to pay the expeditor's fees, your parenting time problem will not be sent to an expeditor.
Restricted/Supervised Parenting Time
The court may restrict parenting time if the parent seeking parenting time may harm or kidnap the children. The court can do this by limiting the hours of parenting time or limiting the place where parenting time can take place. The court can require that he or she only visit when another person is present (supervised parenting time). In very rare cases, parenting time may be denied altogether.
If a parent has been convicted of certain crimes, that parent must convince the court that parenting time with the child is in the child's best interest. These crimes include assault, sexual abuse, parental kidnapping, terroristic threats, felony harassment and stalking. Ask your lawyer if these laws apply in your case.
If parenting time is not restricted or supervised, you may ask the court to order that a law enforcement officer or some other person come along to make sure parenting time happens according to what is written in the court order.
Child support is money the non-custodial parent pays to help support the children. Buying gifts, food, or clothing for the children does not count as child support.
Each county has a child support enforcement unit which will help you establish and enforce a child support order at no or minimal cost. You can to apply for these services at your county offices.
The court will order a reasonable amount of child support to be paid by the non-custodial parent. Minnesota law has guidelines that say how much support should be paid. The court can also order either parent to pay medical insurance premiums or expenses and to pay part of child care costs. The court considers the parent's income or ability to earn income and the number of children supported.
Starting on January 1, 2007, the court considers the income or ability to earn income ofboth parents. This way of calculating child support is called Income Shares. It still looks at the number of children supported and either parent's children from previous marriages or relationships.
The court will also look at
- the income, resources, and needs of both parents
- the needs of the children
- the standard of living the children would have if the parents had stayed together
- the amount of time that the parent paying child support spends with the children.
Failure to pay child support is not a reason to limit parenting time.
Please read the booklet Child Support for more information about child support.
Spousal maintenance is money paid to support an ex-spouse. Either spouse can ask for spousal maintenance, but the court will not award spousal maintenance unless there is a need for it. Spousal maintenance may be granted for several reasons. These include disability or illness or not having worked outside the home for a number of years. If there is a large difference between your income and that of your spouse, you may be in need of spousal maintenance.
In some cases, the court may order spousal maintenance for a limited time while the spouse returns to school or trains for employment. Permanent spousal maintenance may be awarded if the court finds that one of you will not be able to adequately support yourself. The court will consider age, health, education, work experience, skills and other factors.
If you agree to give up (waive) your claim for spousal maintenance, you cannot come back to court and ask for spousal maintenance later. If you ask the court to "reserve" spousal maintenance, the court will not award you spousal maintenance now, but may in the future.
Health Insurance for Children
Health insurance coverage for your children is a part of child support. Starting on January 1, 2007, if the parent ordered to pay child support is not ordered to get health insurance for the children (or to pay all medical and dental expenses) the court may order them to pay some of the cost of insurance. The amount will depend on the parents' incomes.
If neither parent has enough coverage, the court may order one of the parents to apply for public heath care, such as MinnesotaCare. You need to be low-income to be eligible for public health benefits.
The court will also order the parents to pay anything not covered by insurance. The cost is usually divided between the parents. The amount will depend on the parents' incomes.
Health Insurance for Ex-Spouse
The court may also require that medical insurance for an ex-spouse continues. For example, group medical insurance rates may not be available to one spouse or may not cover as many medical costs as the insurance available through the other spouse's employer. The court may order that the insurance through one spouse's employer continue. Either party may be ordered to pay the cost. This kind of insurance coverage is part of spousal maintenance.
The court may also order the non-custodial parent to keep a life insurance policy in effect so that if that parent dies, the children will receive the insurance benefits to make up for the lost child support.
Generally, a court will not order that a life insurance policy be continued just for the benefit of an ex-spouse. If the insurance policy has cash value, ownership of the policy may be granted to either party, the same as other property of the parties.
The court may order either spouse to pay all debts, or may order each spouse to pay part of them. The court will look at several things.
- Who made the debt?
- Who benefited from it?
- Was the debt made before the marriage, during the marriage, or after the parties separated?
- Is the debt secured by property still in the possession of one of the parties?
- Who has custody of the children?
- What are the income, assets, and needs of each person?
A court order directing one of the spouses to pay a debt does not give the other spouse legal protection from the person or business to whom the debt is owed (the creditor). The creditor can still take legal action against either spouse.
All property that was acquired during the marriage is called "marital property." It does not matter whose name is on the title. Both parties are assumed to have made an equal contribution. A homemaker's work in the home counts as an equal contribution. This "marital" property is divided fairly. Usually, fairly means equally. The court will decide the value of all the property and try to divide the property so that each spouse gets approximately half of the overall value. If one spouse has misspent the family's income, or misused or taken property, the court may award more property to the other spouse to make up for that. If one spouse has special needs, the court may award more property to the needy spouse.
For example, if there are two automobiles, each spouse is usually given one of them. This is especially true if the cars are nearly equal in value. If there is only one automobile, the court often awards it to the spouse who has the greater need for transportation. Extra items of personal property may be awarded to the other spouse so that the overall value of each share remains the same. Retirement accounts and whole life insurance policies are property too.
If you own your home or other land, this property must also be divided fairly. The court may order the property sold so that each of you will have your share as soon as possible. The court might award one spouse the home and give the other spouse other property, such as retirement accounts, that equal the equity in the home. If the court believes that it would be better for the minor children to remain in the home, it may permit the children and the custodial parent to remain in the home until the children are 18 years old. Then the proceeds from the sale of the home will be split.
If you can prove that an item of property was "non-marital," the court will not usually award that property to your spouse. Non-marital property is property owned by one of you before your marriage, or was a gift or inheritance to you alone during your marriage. Portions of a personal injury or Workers Compensation award might also be non-marital. The court may award non-marital property to the non-owner spouse only if it would cause unfair hardship or under other limited circumstances.
Household goods are often divided by the couple or the court without deciding if they are marital or non-marital property.
In some cases the court may believe that ending the marriage will not be enough to stop abuse or harassment. A person who is being abused by an ex-spouse should also request an Order for Protection. For more information, see our booklet Orders for Protection and HarassmentRestraining Orders.
Both people in a divorce will usually be responsible for paying
a filing fee of about $400. This fee can change and vary by county. Check with the Court Administrator when you file your case.
your own attorney's fees.
- other costs.
If you can't afford to pay the filing fee, the judge may agree that you don't have to pay it. This usually happens only if a person has a low income and few belongings. This is called "in forma pauperis."
There is no right to a free lawyer (like a public defender) in a divorce. However, there are nonprofit law firms that provide free legal help or arrange for volunteer attorneys for low income clients. See the back of this booklet for information on legal services. If free legal help is not available, or you do not qualify, you will need to hire an attorney or represent yourself in the divorce.
Attorney fees vary from hundreds of dollars if the case is easy to thousands of dollars for cases with custody and/or property disputes. It is important that you understand your payment arrangement with your attorney. Many attorneys charge an hourly fee for their services. You will be charged each time the attorney works on your file. Ask your attorney for a written "Retainer Agreement" or letter which explains in detail how you will be charged for legal services.
If you represent yourself in the divorce you will be called a "pro se litigant." In all Minnesota district courts, there are forms that pro se litigants in divorce cases can use. You should check with your local courthouse or law library or the Minnesota State Courts website (www.mncourts.gov/forms) for more information about where to get these forms.
The length of time to complete a divorce depends upon several things. If both sides reach an agreement or if one spouse never responds to divorce papers, a divorce doesn't take much time. If both sides can't agree, then the judge has to decide. In this case it will take much longer because the court will need to gather information and schedule time in order to make a fair decision. Gathering information might mean having a custody evaluation done or getting financial information.
An uncontested divorce is one where the parties agree on a settlement or one of the spouses does not respond. An uncontested divorce is likely to take a few months. If the parties disagree, the divorce can sometimes take from six months to two years.
Example 1 Example 2 Example 3
1) Summons, Petition and Financial Affidavit Served
1) Summons, Petition and Financial Affidavit Served
1) Summons, Petition and Financial Affidavit Served
2) Default - No Answer
2) Settled - Marital Termination Agreement
2) Answer and/or Counter Petition
3) Default Papers Filed Requesting Hearing
3) Papers Requesting Hearing or Signing Decree
3) Temporary Relief Hearing*
4) Final Hearing
4) Final Hearing if Necessary
4) Scheduling Conference
5) Judgment & Decree
5) Judgment & Decree
5) Mediation or Other Alternative Dispute Resolution (ADR)
*In some counties, both people must attend an Initial Case Management Conference before the court will schedule a temporary hearing.
Early Neutral Evaluation (ENE) may also be offered, but is not required if there is domestic violence.
6) Custody Study, Discovery, Investigation and Trial Preparation
7) Pre-hearing Conference
9) Judgment & Decree
SUMMONS AND PETITION
The spouse who starts the divorce is called the petitioner. The other spouse is called the respondent. The petitioner and the respondent are the "parties" in the divorce.
A divorce officially starts when the petitioner requests that a Summons and Petition be delivered to the respondent. It must be delivered, in person, by the sheriff or some adult other than the petitioner. This is called Service.
Sometimes the respondent cannot be "served" personally with the Summons and Petition because the petitioner does not know where he or she is and has no way to find out. In this case the petitioner can apply to the court for permission to "serve" another way-such as mailing the papers to an address where mail will likely be forwarded to the respondent or publishing a notice in a newspaper. This special service starts the legal proceedings in cases where the respondent cannot be personally served.
The Petition is a legal paper stating that the petitioner wants the court to divorce the parties and how the petitioner wants the court to decide the other questions raised in a divorce. The decisions the court will make are called Relief. The Petition also states the reasons for the divorce and for the other relief requested.
The Summons is a separate legal paper telling the respondent to answer the Petition within 30 days. If the respondent does not, he or she is in default and the divorce is uncontested. This means the petitioner (the spouse who wanted the divorce) may be granted the divorce and other relief requested. The Summons also forbids both parties from selling or getting rid of any property or harassing one another. It requires each party to maintain any insurance for the family. If one spouse spends money belonging to both parties after receiving the Summons, he or she will have to explain to the court why the money was spent.
Starting January 1, 2007,if child support needs to be set, each parent must file a "financial affidavit." You can get the affidavit form from the Minnesota State Courts website at www.mncourts.gov/forms (click on the category "Other"). There are important things that must be attached to the financial affidavit, such as
- pay stubs for the most recent 3 months
- a statement of receipts and expenses, if you are self-employed
- a copy of your most recent tax return including your W-2, 1099 forms, unemployment or worker's compensation statements
- and other documents that show any other income.
If you do not file the financial affidavit, the court will set your child support based on other evidence. You will not be allowed to testify about your income unless the court determines that you did not have access to the documents.
The respondent may disagree with the relief asked for by the petitioner and want the court to hear his or her side. The respondent then must serve an Answer on the petitioner's attorney within 30 days of the date the respondent was served. An Answer is a legal paper saying what the respondent says back to the Petition. Just calling up the petitioner to say something like "I don't like this" is not an Answer. The Answer may be mailed to the petitioner's lawyer. It does not need to be personally served. The Answer states whether the respondent thinks the petitioner's statements in the petition are true or false. It also tells the court what the respondent wants.
An Answer may include a Counter-Petition, in which the respondent states what he or she wants the court to decide and why. Often a Counter-Petition is filed with the Answer so that the respondent can continue with the divorce if the petitioner later decides to withdraw the Petition.
Once an Answer is served, the case is contested and the proceeding can be finished only by a settlement or a trial.
Courts in Minnesota usually only have power over people and things in Minnesota. This power is called jurisdiction. If the respondent was served outside of the State of Minnesota, or if the respondent could not be found and was served by publication or other special service, the Minnesota court might be limited to making only the following decisions
- dissolve the marriage
- give custody and parenting time rights of any children who are under the court's jurisdiction
- award the ownership of property located in Minnesota.
When the respondent is served in another state, a separate child support proceeding can be started with the help of the county support enforcement agency and the county attorney. In this proceeding, the Minnesota court tells the court in the other state that a parent who lives in the other state owes child support. Please see our Child Support booklet for more information.
If the respondent does not answer the Petition within 30 days after it was served, the respondent is in default. The petitioner's attorney tells the court and a default hearing is scheduled. Default hearings are also scheduled when all of the relief to be ordered by the court has been agreed to by the parties in a written agreement called a Stipulation or Marital Termination Agreement. If both parties are represented by lawyers, the divorce may be finalized without a hearing. If both parties did not have lawyers or if the respondent never answered, there is a default hearing. At a default hearing only the petitioner and his or her attorney need to attend. The petitioner is sworn under oath and testifies to all the facts necessary for the court to order the relief requested in the Petition or Stipulation.
In most cases the hearing is very short and simple. Most of the questions can be answered "yes" or "no." The judge signs the Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree that was prepared in advance by the attorney or "pro se litigant" (person representing themselves).
The divorce becomes final when the court clerk "enters" the Judgment and Decree, which means the clerk writes it down on a court list of all judgments. The Judgment and Decree contains the final decisions of the court. Sometimes it is a week or more after the default hearing before the Judgment and Decree is entered. The court clerk may send a copy of the Judgment and Decree to the petitioner's attorney. This attorney serves the respondent with the final Judgment and Decree and gives a copy to the petitioner. There is no waiting period in Minnesota-the divorce is completely final when entered.
In some cases there will be a temporary relief hearing. This hearing can take place after the Summons and Petition have been served. At the hearing the court makes an order that sets the rules for the parties until the divorce is final. A temporary relief hearing is especially important if children are involved and there is disagreement over custody, or if child support needs to be decided right away.
The attorney representing either the petitioner or the respondent can schedule a temporary relief hearing. The other party must be served with motion papers, including an Application for Temporary Relief and/or an Affidavit. Affidavits are written statements signed under oath. The motion papers are legal papers requesting temporary relief from the court and stating the facts on which the request is based. These facts include the income and expenses of each party, who has the children now and why they should be in the custody of the party asking for temporary custody. The motion papers must be mailed or handed to the other party before the hearing. There are certain time periods for giving notice to the other party before the hearing that must be followed when bringing and responding to motions. The petitioner's attorney often has the motion papers served at the same time as the Summons and Petition.
At the temporary relief hearing the judge will look at all of the papers that both parties have filed. The attorneys will speak for the parties, and the court may question the parties. It is unusual for the court to take testimony at a temporary relief hearing.
At the end of the hearing the court will make a temporary order about matters needing temporary decisions. These include
- parenting time
- child support
- who will occupy the home
- who will have the use of any automobiles.
The court can also make an order restraining (stopping) an abusive or violent spouse from harassing or harming the other spouse or the children. The court can order one of the spouses to leave and not return to the home. A violation of this part of the order may be a misdemeanor. The party violating it can be ordered to pay a fine or go to jail.
In any case where parties cannot agree about custody or parenting time of the children, the court will require the parties to attend an orientation and education program. Some courts have programs for children to attend. The program covers the impact that divorce and the restructuring of families and legal proceedings have upon children and families. It will also cover methods for preventing parenting time conflicts and options for resolving disputes.
If you have a good reason for not attending, you can ask the court to excuse you.
If you claim that there has been domestic abuse, you will not be required to attend the same parent education class as the other party. The court should enter an order describing how the parties may safely participate in the program.
There is a sliding scale fee for this program. However, it may be free if you were not required to pay the divorce filing fee.
Court rules now require both sides to try ways other than court to resolve their differences. There are many other ways to reach agreements called alternative dispute resolution (ADR) methods. Make sure you know all your choices before deciding on a method. The parties may be asked to pay for the cost of ADR. Most ADR methods let you stop the process at anytime without reaching an agreement.
Mediationis one ADR method. In mediation, the parties try to work out an agreement between themselves with the help of a neutral third person called a mediator. The mediator helps the parties discuss their disagreements, make compromises and reach their own agreement. Mediation can be helpful because both of you have agreed to the outcome rather than having a big fight and the judge makes decisions for you. Mediation about custody or parenting time can be helpful because you both will continue to be parents to your children and together you can continue to work out parenting issues. In mediation both of you should be able to say what you want and cooperatively work out compromises. If you don't understand things or don't feel you have equal power with your spouse, the mediation is not fair. You can stop the process at any time without reaching an agreement. You only have to try to settle. You can't be forced to agree to something.
If you or your children have been hurt or threatened by your spouse, the court cannot make you mediate. In this circumstance, the court knows that mediation wouldn't be safe or fair. For example, you might just "agree" because you're afraid of what would happen to you or your children if you didn't. Make sure to tell your lawyer, the court or the mediator, if you have been hurt or threatened by your spouse.
There are alternative dispute resolution (ADR) methods other than mediation. Arbitration is an ADR where both sides agree that the neutral third person will decide the dispute. In arbitration, both parties can agree whether or not the arbitration decision will be enforced by the court. Arbitration might be used when you can't agree about the value of something and you're willing to let someone else, other than a judge, decide.
In any of these alternative dispute resolution processes, you always have the right to talk to your lawyer about what's happening and what the choices are.
The court may appoint a "guardian ad litem" if it believes one party has hurt the child or that having someone to represent what's best for the child would be helpful. A guardian ad litem advises the court about custody, parenting time and support during the case. A guardian ad litem is different from other kinds of guardians. The guardian ad litem does not have custody. A guardian ad litem makes an independent investigation about what's best for the child and writes a report for the court. The parties may be asked to pay the costs of a guardian ad litem.
If the parties cannot agree on custody, the court will usually order county, court or social services or a guardian ad litem to investigate the ability of each parent to care for and raise the children. The social worker, court services worker or guardian ad litem will usually interview each parent. They will contact friends and family, teachers, counselors, doctors, and other professionals who have seen the family. The investigator then writes a report to the court and makes a recommendation about custody. Your attorney may be given a copy of the report. The parties are usually required to pay the costs of a custody investigation based on their ability to pay. The court does not have to accept the recommendation of the investigator, but considers it very seriously.
If the respondent answers the Petition, the parties will try to settle the case by having their attorneys work out an agreement. This is called negotiation. If the couple is able to agree on everything (through negotiation or mediation), a written agreement called a Stipulation or Marital Termination Agreement is prepared and signed by both parties and their attorneys. The parties agree that one of them will present the Stipulation to the court. Just one party needs go to court. The other party usually does not attend. The court usually accepts the agreement made by the parties. A written Stipulation may also be presented to the court without the need for any hearing. This process can only be used if each party had a lawyer.
If the parties cannot agree, the case can only be finished by a trial. Before the trial, it may be useful for an attorney to find out the evidence and information that the other party has. This is called discovery. The law permits discovery of evidence by several methods such as
- taking testimony under oath from a party or a witness outside of the courtroom (called depositions)
- written questions that the other party must answer in writing under oath within 30 days (calledinterrogatories)
- a written demand that the other party allow the attorney to look at important papers before trial (called requests for production of documents)
When a problem must be settled before trial and the parties cannot agree, one of the parties may request a motion hearing before the court. Motions may be used to ask the court to make the other party turn over evidence or to enforce the decisions made by the court in earlier orders. Sometimes the temporary relief order must be changed when there has been a change in the facts or an important problem was overlooked at the first hearing.
A motion hearing is like a temporary relief hearing. Usually no testimony is taken and the court makes its decision based on written statements under oath (called affidavits) and the attorneys' arguments.
If no agreement is reached and the attorneys are ready for trial, they ask the court to set a trial date. Most courts set up a pre-hearing conference first. A pre-hearing conference will
- help the parties settle the case and avoid a trial
- identify the areas of disagreement and decide how much time is needed for the trial.
Sometimes an agreement is reached at the pre-hearing conference. The agreement is officially taken down by a court reporter in court and both parties tell the court that this is their agreement. A default hearing may be held immediately.
If no agreement is reached, the case is set for trial. The court mails a notice of the trial date to the attorneys.
Very few divorce cases actually go to trial. Most cases are settled before the trial begins. Usually the attorneys and the judge have a short meeting before the trial starts. The purpose of this meeting is to decide what must be addressed during the trial and what has already been settled by the parties. The attorneys also make agreements so that the trial will be easier, faster, and less formal. For example, they might agree on the order in which witnesses will testify.
Usually the petitioner's attorney calls the petitioner's witnesses first. Each witness is sworn under oath and answers the attorney's questions. Then the other attorney may question the witness. Sometimes the court may ask questions. Sometimes the petitioner's attorney will ask additional questions. When the petitioner's attorney has called all of his or her witnesses, including the petitioner, the attorney tells the court that the petitioner rests his or her case. Sometimes the attorneys will present their argument in writing.
Then the respondent's attorney calls the respondent's witnesses. After the respondent's attorney rests, the petitioner's attorney may call witnesses to respond to the testimony given for the respondent. The respondent's attorney may do the same. When all of the testimony is completed, the attorneys argue the case, saying why the judge should rule in his or her client's favor. Then the judge ends the trial. The judge may announce a decision at the end of the trial. He or she may take time to think about the case and make the decision later. By law, the judge has 90 days to decide the case. Usually the judge sends copies of the decision to the attorneys. The divorce becomes final when the court clerk enters the Judgment and Decree for the court. The clerk tells the attorneys when the Judgment and Decree has been entered. The Judgment and Decree is the final decision in the case.
A party who is dissatisfied with the court's decision may ask the trial judge to change his or her decision or set a new trial or appeal to the Court of Appeals. No new evidence or testimony is taken by the Court of Appeals. Appeals are hard to win. Usually when the Court of Appeals overrules a trial judge, it is because the Court of Appeals believes the trial judge made a mistake about the law.
Appeals must be sought and decided within a certain amount of time. Appeals are complex. Specific rules and time deadlines must be followed in order to successfully appeal your case. Consult an attorney if you are interested in an appeal.
Your rights are explained in the Judgment and Decree. Some of the decisions made in the Judgment can be changed after the divorce such as
- parenting time rights
- child support
- spousal maintenance (unless the right to spousal maintenance was given up, denied, or you agreed in writing not to try to change the amount of spousal maintenance you were awarded)
Other decisions, such as the division of property, can only be changed if there was
- fraud (false information was given)
- a mistake that could not have been discovered before the trial or default hearing
- a violation of your rights in the legal proceeding (for example, you were not properly served the Summons and Petition)
If you need to bring a motion to change your Judgment and Decree, you will have to pay a motion
fee of about $100. If you are low-income you may ask the judge to waive this fee.
If you didn't pay a filing fee while the divorce was being decided, you may have to pay that fee too, unless you have an "in forma pauperis order" (IFP order) that is still in effect.
Custody that has been awarded by the court is very difficult to change. In order to change custody of the children you generally must prove to the court that
- there has been a change in the situation since the divorce
- the children's physical or emotional health or development is in danger.
The court can also consider a change if the parent with custody has denied or interfered with the parenting time of the other parent. However, parenting time problems alone are usually not enough to change custody. Denying or interfering with a parenting time schedule is a factor that a court may consider in deciding to change custody. A judge can also change custody based on the "best interests of the child", if both parents agreed to use that standard in a writing approved by the court. You need to talk to an attorney before you agree to use a "best interests" standard. An attorney can help you understand what this means.
If you and your ex-spouse agree to change custody of the children, you should make a motion to the court to change custody and support orders. Otherwise, you are still responsible for paying support to the other parent, even if you actually have custody of the children. Custody is sometimes changed if the custodial parent allows the children to live with the non-custodial parent for a much longer time than was ordered for parenting time.
Denying or interfering with an established parenting time schedule is a factor the court may consider when deciding on a change of custody. The court will look at the reasons parenting time was denied.
The court can increase or decrease child support payments if the situation of the parents or the children has changed so that the old order is unreasonable or unfair. See our Child Support booklet for more information.
If the non-custodial parent does not pay the child support ordered, there are three main ways of enforcing the order. All of these methods are complicated. You should try to find an attorney to help you. You can hire an attorney, or you can ask for legal help from the child support enforcement office of your county. This office is sometimes called Support and Collections or the IV-D (4-D) unit. Please see our Child Support booklet for more information.
If child support was ordered but is not being paid, steps to enforce the order can be taken by the custodial parent or the county human services department. If the children are receiving public assistance, the county can also ask the court for a separate order requiring the other parent to pay back the assistance that has been received by the custodial parent for the past two years. The county can also ask the court for an order requiring you to pay back Medical Assistance and some other benefits the children received. The court can order payment whether or not the Judgment and Decree included a child support order.
If you have been ordered to pay child support and your situation has changed so that you cannot pay the amount of support ordered, it is important to contact the county child support officer right away. You can bring a motion to ask the court to lower your child support. If you do not bring a motion, there is little chance the court will forgive back support, even if you were unable to pay. See the Child Support booklet for more information.
A six-month review hearing can be scheduled to make sure parents are following court orders for custody, parenting time and child support. The court cannot change orders at this hearing, but it can take steps to make sure the orders are being followed. Either parent can ask for a six-month review hearing after getting a divorce, custody, child support or parenting time order for the first time. The court administrator can give you a form and the steps needed to ask for this hearing.
If you are having problems with parenting time, you can try to work it out with the help of another person that both of you trust before you ask the court to get involved. This person may be a mutual friend, minister, counselor or social worker. A parenting time expeditor might be appointed to work with you to try to solve the problem. For more information see page 9.
You can also go to court to get an order to change or set a parenting time schedule or for supervised parenting time. The court may send you to a parenting time expeditor before the court hears your motion for a change in parenting time. The court can order mediation or you can voluntarily agree to use mediation to try to resolve parenting time problems. If one parent denies parenting time, the other parent can go to court to request more parenting time or even to change custody. The court will look at whether or not there was a good reason for denying parenting time. Abuse of the children would likely be a good reason to deny parenting time.
Failure to pay child support is not a reason to deny parenting time. The court may order additional parenting time if it decides that one parent unreasonably denied parenting time. The court may limit parenting time if the non-custodial parent unreasonably fails to spend parenting time with the children.
Your children's grandparents can ask the court to order that they be allowed visitation with the children. This can happen during or after the divorce proceeding.
If you or your children are being abused, being hurt or threatened, you can go to court and get an Order for Protection. Orders for Protection apply to ex-spouses, married couples and people who have children together but are not married. For more information, please see our bookletOrders for Protection and Harassment Restraining Orders.
If the custodial parent wishes to leave the state, the other parent must agree that the children can move or the custodial parent must get permission from the court. If the other parent agrees, the agreement should be put in writing. The court must weigh certain factors when deciding whether to allow the move. The factors are things like the reason for the move and the child's relationship with the other parent and other family members. The parent requesting the move must convince the court to give permission, except in domestic violence cases.
Moving the children from Minnesota without permission could result in the court ordering a change of custody.
Parents in child custody and parenting time disputes sometimes take matters into their own hands by taking a child away from the other parent. Kidnapping can happen before any court decides custody and parenting time rights, or after custody is decided by the court.
Taking or hiding a child, or not returning the child after parenting time, can be a serious crime. Minnesota has a law which makes it a crime to deprive another of their custodial or parental rights. Under this law, you do not have to have a court order giving you custody or parenting time. If the other parent is hiding the child, you may be able to show that you have been deprived of your custodial or parental rights.
Violation of the law can result in a prison sentence of up to one year and one day, a $3,000 fine, or both.
If a parent takes a child to protect the child from abuse, or if the other parent consents, the law may not apply.
Minnesota, like most other states, passed a law called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) so that parents could not go to another state to try to get a different custody order. Under the UCCJEA, the courts of different states have guidelines to help decide which state's court should decide custody. The courts are encouraged to discuss the matter and avoid disagreements between states. Usually the court in the state where the child has lived most recently for the past six months has the authority to decide custody of the children. If a court in one state has already decided custody, the UCCJEA prevents a court in another state from changing the custody order, unless the first court refuses to act or no longer has enough connection with the child and parties.
Another important tool for a parent whose child has been taken or hidden is the Federal Parent Locator Service (FPLS). An attorney must ask the court or county attorney to request FPLS assistance. The court or county attorney can apply to the FPLS for assistance in locating the missing parent. The FPLS is a computer search using the Social Security number of the missing parent to find home and work addresses for that parent. You must have the correct Social Security number in order to use the FPLS.
If your child has been taken by the other parent, you should contact friends, neighbors, and relatives to get information about the other parent's location. Schools should also be checked to see if the child's records have been transferred. You can also check the State Bureau of Motor Vehicles to see whether a new car license or a new driver's license has been issued to the parent who has hidden or taken the child.
You may want to keep a folder with information about your child that includes
- a fingerprint card which can be made by the local police or sheriff's department
- a Social Security card for the child
- a certified copy of the child's birth certificate
- up-to-date medical and dental records from your child's doctor
- up-to-date pictures of your children.
If you think that a kidnapping might happen even after you are granted custody in the Judgment and Decree, you should ask your attorney to make sure that the Judgment and Decree includes specific custody and parenting time arrangements.
If your child is taken, or if the other parent refuses to return the child after parenting time, contact the police in your community or an attorney right away. If you wish to bring criminal charges, you must contact the County Attorney's office.
The right to claim a child as a dependent for income tax purposes usually belongs to the custodial parent. The non-custodial parent may not claim the dependent unless
- the custodial parent gives up the right and there is a written agreement
- the divorce decree states that the non-custodial parent can claim the child as a dependent.
The custodial parent must sign a form provided by the Internal Revenue Service giving the dependent exemption to the non-custodial parent. For Judgments or written agreements before January 1, 1985, the non-custodial parent must also have paid at least $600 during the tax year in child support to be able to claim the dependent exemption.
Spousal maintenance is deductible for income tax purposes by the party who pays it. It is income to the party who receives it.
If your ex-spouse is ordered to pay a debt but doesn't pay it, the creditor may force you to pay it if you originally signed for the credit. This can happen no matter what the divorce decree says. If that happens, you can ask the court to order your ex-spouse to pay you back. The court can also find your ex-spouse in contempt of court for violating the court's order.
If your ex-spouse was ordered to provide medical or life insurance, but does not buy insurance or cancels the insurance, the court can order your ex-spouse to reinstate the insurance policy or get a new policy. The court may also order your ex-spouse to pay medical or hospital bills which should have been paid by the insurance. If cash was received for the policy that was canceled, the court can award you all or part of the money. You can also ask the court to find your ex-spouse in contempt of court.
If one of the parties is awarded ownership of the home or other real estate, the Judgment and Decree will describe exactly how the transfer is to happen. Many times, the Judgment and Decree orders the other party to sign a Quit Claim Deed. A Quit Claim Deed transfers his or her rights in the real estate to the party who was given the property. The Quit Claim Deed and the Judgment and Decree are filed with the County Recorder or Registrar of Titles. If the property is registered (called Torrens) property, the owner's duplicate certificate of title is needed. The Quit Claim Deed and the Judgment and Decree are then "memorialized" by the Registrar of Titles and a new title issued. If the Quit Claim Deed is not signed and provided, you should check with an attorney and/or the County Recorder or Registrar of Titles to find out what to do.
Sometimes the Judgment and Decree orders that a no Quit Claim Deed is needed and that the Judgment and Decree alone will transfer title.
The other party is often awarded a lien or a mortgage for a share of what the property is worth. A lien is a claim on the property. The party awarded the real estate owes the other party the amount of the lien or mortgage. The Judgment and Decree usually sets a date by which the payment must be paid. If the lien is not paid when due, the party owed the money can ask the court to order the other to pay the lien, or to change division of the property in the Judgment and Decree. In the case of a mortgage, the holder of the mortgage could foreclose.
If you are awarded personal property which is not in your possession, your ex-spouse must deliver it or allow you to pick it up. Personal property includes money in a bank account, household goods and furniture, or a motor vehicle.
In some cases, the Judgment and Decree spells out how the property will be exchanged, or sets a time limit (such as 30 days) in which the transfer must take place. If the Judgment and Decree does not spell it out, the parties must make their own arrangements. The party who is ordered to give the property to the other party must let him or her get the property within a reasonable time after the Judgment and Decree is entered, in a way that is convenient for both parties. If you are afraid of your ex-spouse, you may ask a local law enforcement officer to assist you in obtaining the personal property awarded to you.
The title card for a car or a mobile home may be in both names or in the name of the party who was not awarded the property. In that case, the title card must be signed over to the party who was awarded the property.
If your ex-spouse will not give you the property, you can ask the court to order the sheriff to help you get the property. The court can also tell a bank or other institution to give you the money in the bank account awarded to you. It can also tell the state to change the title of the motor vehicle or mobile home.
Sometimes the Department of Motor Vehicles will give you a new title if you show the Court Order that gives you the car even if the order doesn't tell the department to transfer title. The order must have the car's V.I.N. number in it.
The court can punish or jail an ex-spouse for being in contempt of the court order if he or she refuses to cooperate and until the transfer of property is made.
A party who has been denied his or her personal property can also sue in Conciliation (Small Claims) Court for money damages up to $7,500. For cases started on or after August 1, 2012, the limit goes up to $10,000. For cases started on or after August 1, 2014, the limit will be raised again to $15,000. The filing fee is small and the parties speak for themselves without lawyers.
For more information about Conciliation Court, go to www.LawHelpMN.org.
If you can afford an attorney, but don't know any, ask a friend who was satisfied with his or her attorney. You can also look in the yellow pages under "Attorneys." You can contact the local bar association's attorney referral service listed below. The Lawyer Referral Service can give you the name and telephone number of an attorney in private practice in your area who may be able to represent you. You may have to pay an initial fee for the first appointment with the attorney. You may be able to negotiate how much you will pay the attorney for representation in a divorce. Many attorneys will ask for payment of some money before the divorce is begun. This is called a retainer.
If you cannot afford to pay an attorney, you may be able to get assistance from the legal services office in your area. You can find your local office on www.LawHelpMN.org. You must meet low-income guidelines to be eligible for legal services (legal aid). You may be referred to a volunteer attorney program by the legal services office.
LAWYER REFERRAL SERVICES
Hennepin County Bar Referral Service....................................................................... 612/752-6666
Ramsey County Bar Referral Service.......................................................................... 651/224-1775
Minnesota State Bar Association's Lawyer Referral System website: www.mnfindalawyer.com
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