• Some Basic Information About Divorce in Minnesota
  • April 21, 2011
  • Law Firm: Standke Page Ltd. - Minnetonka Office
  • General Considerations

    A divorce action in Minnesota is called “marriage dissolution” or “dissolution.”  Under Minnesota law, a dissolution proceeding is based upon the premise that fault for the breakup of the marriage is not legally relevant. This concept of “no-fault” dissolution generally means that the dissolution will be granted if either party believes that the marriage is over.

    The court system is not intended to assist parties with the emotional trauma that is often associated with the breakup of a marriage. It is also not intended as a tool for punishment of your spouse or as a place to seek revenge.  Judges are required by law to decide the issues in a case solely on the basis of the evidence that is presented to them and, with limited exceptions, the law does not permit the Court to consider or compensate parties for a spouse’s misconduct.

    The most economic and productive way to resolve the issues in a dissolution is by reaching a voluntary settlement agreement with your spouse. Compromise and cooperation in reaching a fair settlement offers the opportunity for a higher level of satisfaction and lessened animosity between you and your spouse.  The Family Court today not only encourages, but actually requires  parties to attempt to mediate their disputes before a case will be allowed to go to trial. A mediator is a neutral person trained to help you and your spouse reach a settlement. 

    If mediation and negotiations fail to resolve the disputes, then the Court will hear the evidence in your case and decide the issues presented to it  exclusively upon the limited evidence that is presented in court, and nothing else.  Because judges are limited by statutory law and case law in what they can and cannot do, a voluntary settlement by the parties allows the parties to consider a wider range of options. 

    Every dissolution is similar and yet different.  Cases that appear to be superficially similar may, in fact, turn out to be very different legally and treated differently under the law.  It is a good idea to consult with a lawyer experienced in family law matters for advice and information even before proceeding to mediation. The advice received from your friends and relatives, even though well intentioned,  may actually hinder you in the long run.

    The law view spouses as financial partners during the marriage and it presumes that both parties are entitled to share in the assets and income the partnership made during its existence, regardless of which spouse earned the income or acquired the assets. As part of any dissolution proceeding, you will be expected to make a candid and complete disclosure of your finances to your spouse. 

    Most dissolutions involve four major issues: child custody and parenting time, child support, spousal maintenance and a division of property and debts.  While property and debt division issues are typically final after a case is initially concluded, the Court may be asked to modify custody, parenting time or support arrangements after the initial dissolution is concluded and it has the authority to do so if a substantial change in circumstances occurs after the original judgment was entered.

    Child Custody and Parenting Time

    Parents and their children may be required to attend parenting education programs before the dissolution is granted.  These programs  are intended to help parties and their children understand the effect that the dissolution may have on children and how the parties can make the transition less traumatic for them. While the marriage may be ending, you will continue to be parents to your children.  Most parents will share parental responsibility for their children after the dissolution.  In doing so, it is important to learn ways to communicate and confer with each other in making decisions that will affect your children.

    Usually, the Court will grant both parents legal custody of children (joint legal custody) and will grant one parent primary residential care (sole or primary physical custody) of the children.  It is also possible for the Court to grant joint physical custody to both parents in certain cases.  Unless there is a good reason shown to limit parenting time, the Court will typically grant the parent with whom the children do not primarily reside liberal parenting time.  The Court must decide custody issues based  solely on what is in the “best interests” of the children. 

    In virtually all custody contests, the Court will direct both parties to participate in mediation to first attempt to resolve disputed issues.  Reaching an agreement on custody will make your case easier and help your children immeasurably in dealing with the transition.  If domestic violence has occurred, the Court cannot require you to participate in mediation and will typically not award joint legal or joint physical custody.

    If an agreement regarding parenting time is not reached, the Court may order a custody study to be done by professionals who are trained in child development issues, with the  cost of that study being allocated between the parties.  This evaluation often takes several months to complete and frequently involves home visits and contacts with collateral sources, such as the children’s doctors, child care providers and significant others who may come in contact with the children in the future.

    In cases where child abuse or neglect is alleged by a parent during a dissolution, the Court must appoint a person called a “guardian ad litem” (GAL) to represent the best interests of the child with respect to custody, support and parenting time issues. The GAL may also be appointed if the Court believes the conflict in the case presents a potential hazard to the child’s welfare or the child’s interests are not being adequately served.  GAL’s must maintain confidentiality of information, monitor the child’s best interest throughout the proceedings, and present written reports to the court on the child’s best interests.  If a GAL is appointed, the costs of the GAL’s services will also be allocated between the parties in most cases.

    Child Support

    Under Minnesota law, child support is given higher priority than other debts or financial obligations, even mortgage and tax payments.  Both parents are required to contribute to the support the children,  but the non-residential parent will usually be directed to pay his/her portion of the support to the other parent.  This does not mean that the residential parent is not contributing to the support since the residential parent’s income is taken into consideration in setting the support obligation of the non-residential parent.

    Minnesota has statutory guidelines for the calculation of child support. The law creating the guidelines was significantly changed in 2007 and so if your friends or  relatives were involved in dissolution proceedings before 2007, their child support obligations were likely calculated using a different method than the guidelines provide today. Currently, the child support in your case will be determined based upon the incomes of both parents or in some cases based upon the “potential income” of a party. 

    Spousal Maintenance

    It is also possible for the Court to order a party to pay spousal support (which is called “spousal maintenance” under Minnesota law) in certain cases.  When awarding spousal maintenance, the Court considers a number of facts, but generally the two factors which are most significant are the needs of the party seeking support and the other party’s ability to pay.  Both of these factors must be proven in court by the requesting spouse.  Spousal support may be awarded to either a husband or wife and, depending on the length of the marriage and other factors. Spousal support may be permanent or for only a limited duration.

    Property Division

    Under Minnesota law, the Court must make a “fair and equitable distribution” of marital property and debts.  “Equitable” does not always mean “equal.”   Many factors, including child support, custody and spousal support awards, can cause the Court to make an unequal (but still equitable) division of property.  Property that was acquired before the marriage or inherited by one but not both parties may be deemed to be the “non-marital property” of one of the spouses and may not be divided in the same manner as  the property acquired by the parties during the marriage.

    Attorney’s Fees

    The Court has the power to order one party to pay some or all of the other’s attorney’s fees.  Courts will often make such awards to assure that both parties have equal access to competent counsel. Attorney’s fees are not awarded in every case. In addition, the Court has the power to award attorney’s fees to sanction misbehavior that occurs during the course of the dissolution proceeding. If a party is ordered to do or not do something and they do not follow the Court’s directions, the Court can award attorney’s fees to the other party to deter such misbehavior.   There is no absolute right an award of attorney’s fees and costs.  The law in Minnesota leaves the determination of when fees should be awarded to the discretion of the trial court judge.

    Final Thoughts

    Have Reasonable Expectations

    You will certainly be disappointed if you expect to “win” on every issue in your case.  Rarely is either party happy about every ruling in a case. Keep in mind that the legislature has mandated that the results in dissolution cases are to be fair and equitable to both parties.  Even the best rulings can leave both parties somewhat dissatisfied.  Encourage your attorney to give you a realistic assessment of the likely outcome of your case.

    Keep Communication Open With Your Spouse/ Former Spouse

    As long as children are involved, you and your former spouse must try to find ways to work together.  Your children will suffer to the degree that you and your former spouse cannot communicate or cooperate.

    Get Professional Help To Deal With Your Emotions

    Emotions, such as anger, pain, and betrayal are a normal and understandable element in dissolutions, but expressing them inappropriately in court will not help you to persuade the Court to your point of view and may actually interfere with your ability to provide the Court with the kind of information it needs to correctly decide your case.  If you having trouble dealing the emotional components that are a part of this process, do not hesitate to get counseling to help you through it.    A good counselor can help you, and your children, get through this difficult time and avoid having the anger become counterproductive.

    Encourage and Support Parenting Time

    If you are the custodial parent and the court has ordered parenting time between your children and your ex-spouse, you have a duty to encourage parenting time.  Encourage your children to see your former spouse frequently and to enjoy the contact.  Do not view support or parenting time as a bargaining chip in dealing with the other parent.  However, if mental health, chemical dependency, abuse or other issues arise and you think your children are not safe with your ex-spouse, seek professional advice on what to do.