Frequently Asked Questions About Family Law in Minnesota

Q: What should I do before or immediately after starting a divorce in Minnesota?

A: Prior to filing for divorce or immediately following receipt of a petition for dissolution, you will want to seek the advice of a family law lawyer who is knowledgeable about Minnesota divorces.  In addition, you will want to be prepared mentally, emotionally, and financially.  The more you prepare, the better a divorce typically goes.  Mental preparation includes understanding the basic framework of a Minnesota divorce.  It also means preparing yourself by thinking about the important issues that will inevitably arise as a result of a divorce.   Emotional preparation should include the real possibility that feelings will be hurt, that lives will be changed, and that things will not be the same as they were in the marriage.  Financial preparation includes putting your financial documents and other papers in order.  Minnesota courts are very specific in their requirements for documents.  Keeping copies of tax returns, W2's, insurance policies, bank statements, investment account statements, salary information, and property records are always necessary.  Individuals are also encouraged to close joint bank accounts or at least withdraw half of the funds.  You should also close joint credit card accounts or have you name removed from the account.  Keep track of spending by saving receipts. 

Q: How do I start a divorce proceeding in Minnesota?

A: Divorces in Minnesota start by personally serving the other party with a Summons and Petition for Dissolution of Marriage. 

Q: What is a summons?

A: A Summons is a legal document which puts a party on notice that an action--in this case a divorce--has been started.

Q: What is a Petition?

A: The Petition is a legal document in the action for divorce, separation or annulment which accompanies the Summons.  The Petition contains the general allegations in the matter and requests relief.  The general allegations typically center on child custody, child support, spousal maintenance, property division and the payment of legal fees.

Q: What happens after my spouse is served with the summons and petition for dissolution?

A: Upon receipt of the Summons and Petition for Divorce that spouse has 30 days to file an Answer.  It is best to involve an attorney immediately, to ensure that the attorney knows the facts of the case and can ensure that rights are protected.

Q: Can I see my spouse’s financial records?

A: Yes.  In Minnesota both spouses have the right to complete disclosure of the financial details of the other spouse.  Disclosure should include income, assets, and expenses.

Q: What are the grounds to get a divorce in Minnesota?

A: Minnesota is a “no-fault” divorce state.  You need only to cite “irreconcilable differences” and you need not go into detail about the underlying reason for the divorce.

Q:  Do I have to live in Minnesota to get a divorce in Minnesota?

A: One or both of the parties of the divorce action must have lived in Minnesota at least 180 days prior to the commencement of the proceeding.

Q: How long will it take to get a divorce in Minnesota?

A: The short answer to the question is: it depends.  The length of a divorce depends on the two parties, their attorneys and the court system.  Generally, the Minnesota Court system is very good at moving the parties through the process with efficiency.  Hiring a competent family law attorney will also generally speed the process along. That leaves the parties.  Although you may think that the issues are clear cut and ripe for settlement, your spouse may not have come to terms with the divorce.  The parties can disagree over child custody, child support, division of assets, division of debts, and spousal maintenance, just to name a few.  One party, no matter how badly they want a divorce, does not control the speed for the process.  A good case can be resolved in as little as 3 months or less.  A contested case can last in excess of a year.

Q: How much will a divorce cost me?

A: One-third of divorces cost more than $12,000.  These cases involve extensive real estate or other financial holdings.  A business may be involved.  The parties disagree on custody.   Generally the spouse is uncooperative.One-third of divorces cost $6,000 to $12,000.  These may involve temporary hearings, marriages are of longer duration (10 years or more), and involve spousal maintenance, some custody issues and child support.  Asset division can involve division of equity in homestead or award of property, division of investment accounts and division of debt.One-third of divorces cost $2,000 to $6,000.  These divorces are typically ones where: the duration of the marriage is short; the presence of children in the marriage is not an issue; both partners are self-supporting; there’s little or no real estate; both parties are ready to settle and have a good knowledge of division of property.

The factors that often drive up legal fees are:


Q: Does it matter if I move out of the home?

A: The choice to move out of the home depends on a number of factors.  If child custody, parenting time or a dispute as to the award of the home is an issue, a party should not move out of the house.  It is far too easy for a court to preserve the current situation and rule in favor of the party who remained in the house or with the party currently caring for the children.   CHILD CUSTODY IN MN

Q: Will I get custody of my children?

A: Child custody in Minnesota is based on the best interests of the child.  The thirteen factors are outlined in Minn. Stat. §518.17, subd.

The factors include:

  1. The wishes of the child’s parents as to custody.
  2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
  3. The child’s primary caretaker.
  4. The intimacy of the relationship between each parent and the child.
  5. The interaction of the child with the parent or parents siblings, and others.
  6. The child’s adjustment to home, school, and community.
  7. The length of time the child has lived in the stable environment.
  8. The performance, as a family unit, of the existing or proposed custodial home.
  9. The mental and physical health of all individuals involved; 10.  The capacity of the parties to give the child love, affection, and guidance.
  10. The child’s cultural background.
  11. The effect on the child of the actions of an abuser, if related to domestic abuse.
  12. The willingness of each parent to encourage and permit frequent ongoing contact by the other parent with the child.   
In addition courts will often order an evaluation to assist in making a final custody determination, if the parties are unable to agree on custody.

Q: What is the difference between legal and physical custody?

A: In Minnesota there is a presumption in favor of “joint” legal custody.  Legal custody is the right to determine the child’s upbringing including education, health care and religious training. (Minn. Stat. §518.003, subd 3(a).)  However, Minnesota courts favor “sole” physical custody.  Physical custody is the routine and daily care of the minor child.  (Minn. Stat. §518.003, subd 3(c).)  The parent who is granted physical custody will have the child living with him or her.  

Q: What is parenting time/visitation?

A:  What was once referred to as “visitation” is now called “parenting time” pursuant to Minn. Stat. § 518.003, subd. 5.  Parenting time is defined as the time a parent spends with a child.  Courts are required to grant time and rights to the noncustodial parent as a way to maintain a relationship between the parent and child. SPOUSAL MAINTENANCE (SUPPORT) IN MN

Q: What is spousal maintenance?

A: Spousal maintenance (or alimony as it is often referred) is the payment of future income or earnings from one spouse to the other for support as a result of divorce.

Q: What is permanent spousal maintenance?

A: Permanent spousal maintenance, as the name implies, is an award for maintenance that is not of a fixed duration. 

Q: What is temporary spousal maintenance?

A: Temporary spousal maintenance is for a fixed period of time, such as for 10 years, or for a duration necessary to satisfy the occurrence of an event, such as graduation from college.

Q: Who is eligible for spousal maintenance in Minnesota?

A: In Minnesota, a court may grant a maintenance order for either spouse 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.DISTRIBUTIONS OF PROPERTY AND ASSETS IN A MN DIVORCE

Q: What property is subject to division and how is it divided?

A: Two basic types of property exist in actions for dissolution of marriage and annulments--marital and non-marital.  Marital property is real and personal property acquired by the parties during the time of the marriage.  Non-marital property is real or personal property acquired by either party before, during or after the marriage; that is a gift by a third party to one spouse but not the other; was acquired before the marriage; was acquired after the date of valuation; is excluded by a valid ante nuptial contract; or was acquired for or is an increase in value of one of the above described types. In Minnesota family law, courts make just and equitable divisions of the marital property of the parties and do not consider marital misconduct.  Just and equitable does not necessarily mean that the property must be divided equally.   Non-marital property is typically not part of a division unless the party claiming the non-marital property cannot show a proof of its non-marital status or if an unfair hardship can be shown.

Q: Is my business subject to a division?

A: Yes, courts are obligated to divide assets, including business interests, closely held corporations, partnerships, and sole proprietorships in a just and equitable manner.  Valuation of the assets is key. For closely-held corporations, courts recognize that determining the value of many companies is difficult.  In many cases courts will employ a book value of valuation, a capitalization of earnings approach, a dividend paying approach or liquidation value approach.  For partnerships, Minnesota courts will often take the fair market value of the partnership’s assets, both real and personal, and deduct the liabilities.  Finally, the percent of the partner’s interest is determined to aid in the division.  Part of the problem in determining an accurate value are the other issues like work-in-progress, appreciation of tangible property, good will and cash on hand.  Great care must be taken to accurately determine how these factors affect the value of partnerships.

Q: Can I keep my home?

A: Generally, the custodial parent is awarded the homestead of the parties.  In all cases courts have the authority to order a sale, grant a lien, or divide the property by some other method. CHILD SUPPORT IN MN

Q: What is child support?

A: Child support is the payment of money to the custodial parent for the care, support and education of a child.

Q: Who is eligible for child support in Minnesota?

A: One parent or both parents owe a duty of support.  Typically the parent who has the majority of the parenting time is entitled to receive child support from the other parent.

Q: How is child support calculated in Minnesota?

A: Child support is calculated using the new child support calculator.  The calculator uses factors including the gross earnings of both parents, the amount of time spent with both parents, and health care coverage provided, among others.

Q: Can I waive the right to receive child support?

A: Courts are reluctant to deviate from the guidelines.  However, deviations are allowed if findings of fact are entered to explain why the deviation is justified. 

Q: What happens if child support is not paid?

A: Failure to pay child support in Minnesota can result in arrears.  Failure to pay court-ordered arrears can result in loss of driver’s license, credit bureau reporting, garnishment, and loss or suspension of professional license.

Q: Do I need court approval to change the amount I pay for child support?

A: Yes.  The State of Minnesota has a stake in ensuring that children do not become wards of the State.  Although private agreements can be made, ultimately, courts have the statutory authority to approve or deny the modification.  In addition, problems often occur where parties do change their mind after an agreement has been reached.  Best practice is to modify the child support with aid of counsel and the court.

Q: CAn I deny the other parent visitation (parenting time) if he or she has failed to pay child support?

A: Failure to pay child support is not an adequate basis for denial of parenting time (visitation). MODIFICATIONS OF DIVORCE DECREES AND COURT ORDERS IN MN

Q: I am being deprived of parenting time (visitation) with my children, what can I do?

A: A non-custodial parent being denied visitation by the custodial parent needs to keep an accurate record or diary of the dates missed and the purported reasons given.  Law enforcement officers can be involved to help enforce a transfer.  If the custodial parent continues to deny parenting time you must take further action.  Courts are very protective of visitation rights.  If willful denial is shown, the party may be admonished by the court, found in contempt of court, fined and in extreme cases, experience a reversal of custody.   Do not allow the denial to go on for long.  Cases where a non-custodial parent sits on their visitation rights are much harder to try than if progressive steps are taken to remedy the problem.

Q: What can I do if I can no longer afford to pay spousal maintenance?

A: Spousal maintenance can be modified by both amount and duration unless a court has been divested of jurisdiction on the maintenance issues.  Modification is appropriate where a substantial increase or decrease in earnings on the part of the paying spouse has occurred, where there’s been increase or decrease in need or ability to pay by a party, or where there’s been a change in the cost of living for either party.

Q: Can I modify my support under the new 2007 Minnesota child support law?

A: From the time the law goes into effect, January 1, 2007 to December 31, 2007,   modification will only be considered under specific circumstances.  The change in the law is not enough to bring a motion for modification.  After December 31, 2007 modification will be based on Minn. Stat. 518A.39 subd. 2(a).  You if you have questions whether you qualify prior to the end of 2007, consult a Minnesota family law lawyer.

Q: If circumstances have changed, how can I get custody of my child?

A: Post decree modifications of child custody are governed by Minn. Stat. 518.18(a).  Motions for modification may not be brought until at least one year after the date of the decree that originally determined custody.  If a prior motion for modification has been brought, no other motions may be made until two years after the motion has been decided.  There are exceptions to this rule:

  1. If the party can show agreement in writing between the parties to a motion hearing.
  2. If the court finds persistent willful denial or interference with visitation.
  3. If the court has reason to believe that the present environment may endanger the child.

Q: Can my ex-spouse move out-of-state with my children?

A: On August 1, 2006 the law relating to out-of-state relocation of a custodial parent with a child was changed.  Now under Minn. Stat. 518.175 subd. 3, the court will apply a “best interest of the child” standard.  The burden is now upon the parent requesting the move, unless the parent has been a victim of domestic violence.

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