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Frequently Asked Questions in Minnesota Divorce | Child Custody and No Fault Divorce Answers

Shoemaker & Shoemaker PLC provides the following answers to frequently asked questions related to Minnesota legal separation and divorce proceedings and to provide an overview on how legal and physical custody of children is decided in Minnesota.

If you would like to discuss your case in a "no-obligation" complimentary consultation, call Minnesota Divorce Attorney Paul Shoemaker today at 952.224.4605.

Shoemaker & Shoemaker. Thoughtful Solutions. Reasonable Fees.™

How is Custody of Children Decided? (Click here to jump to Article)

Frequently Asked Questions in Minnesota Divorce Proceedings
© 2019-2023 Paul F. Shoemaker

This article is intended to provide you with answers to frequently asked questions that arise about the legal aspects of divorce so that you will be better able to understand the process. This is not legal advice - every proceeding is unique and advice and counsel must be directed at the individual circumstances in your proceeding.

In Minnesota, divorce (the legal termination of a marriage relationship) is now called "Dissolution of Marriage." In this overview, the  terms "divorce" and "dissolution" and "alimony" and "spousal maintenance" are used interchangeably.

Divorce is difficult for all members of a family, including the spouses, children and parents of divorcing children. The proceeding often produces great and continued mental and emotional stress and anxiety because of undesired change and emotional conflict. Parties involved in divorce face a continuum of changing emotions including release and elation and/or grief and sense of loss. Because a person experiencing divorce makes many subconscious decisions by emotions, it is imperative that each party receive objective, competent and professional legal advice and individual counseling and therapy for emotional issues. We provide thoughtful solutions to your family law problems.

My Question: What is the difference between legal separation and a divorce?

Answer: A proceeding for legal separation is intended to determine the rights and obligations of the parties after issuance of a decree of legal separation. Following final decree, you and your spouse will still be legally married, but your marital status will be as legally separated. Certain individuals are morally or religiously opposed to divorce or may hold some hope of reconciling with their spouse. This proceeding enables them to chose an option that maintains the legal marital relationship but severs their legal responsibility for future debts incurred by their spouse, and determines other rights, such as custody, child support, spousal maintenance. The court does not make a final division of marital property but property acquired after the decree of legal separation is entered may be considered "non-marital" property.

A divorce proceeding ends in dissolving the bonds of marriage between the parties and finally determines rights of ownership to assets owned by the parties. It is premised on the assertion by at least one party that there has been an irretrievable breakdown of the marriage without hope of reconciliation. If either party petitions for divorce, a legal separation proceeding is converted to a dissolution of marriage proceeding.

My Question: Do I need to have "grounds" in order to obtain a divorce?

Answer: No. There is no longer any requirement that one spouse show "grounds" to obtain either a legal separation or divorce, such as mental or physical cruelty, adultery or abandonment. Moreover, the Court will not permit any testimony on these issues to support the dissolution of the marriage.
A divorce is granted if the Court finds that there has been an "irretrievable breakdown" of the marriage relationship. This is usually based upon the testimony of one spouse that there is no hope of reconciliation. Therefore, if one spouse is determined to obtain a divorce, there is very little the other spouse can do to prevent it.

My Question: Is "fault" considered by the Court?

Answer: Under Minnesota law, the "fault" (bad conduct) of either party is not considered in determining monetary issues such as in dividing property or determining the proper amount of spousal maintenance or child support. Fault may only be considered by the Court if a parent's misconduct reflects upon issues of child custody and visitation. Therefore, a spouse's conduct during the marriage which has contributed to or brought about the failure of the marriage is not considered unless the conduct has some direct relationship to child custody and/or visitation issues (for example, abuse or neglect of children or conduct which threatens the safety of the children).

My Question: How does a divorce or legal separation proceeding start?

Answer: In Minnesota, a proceeding for divorce or legal separation begins when the spouse seeking the divorce (who is called the "Petitioner") prepares a "Summons" and "Petition for Dissolution of Marriage" or "Petition for Legal Separation" for delivery on their spouse. The proceeding formally commences when these documents are given to the responding spouse (who is called the "Respondent"). The Summons warns the respondent to formally take part in the proceeding or the issues will be decided without their participation. Minnesota law requires the spouse receiving a Summons in a dissolution proceeding to respond within thirty (30) days after receiving the papers.

If you are the respondent, you have the right to prepare and reply by a document entitled an "Answer and CounterPetition." Your written Answer must be served on your spouse or attorney within 30 days of your receipt of the Summons.

The "Petition" or "CounterPetition" summarizes basic facts about the couple's situation including names and ages of spouses and children, date of marriage, and a brief description of income earned, property owned and any unpaid debts. The Petition or CounterPetition also summarize the requests of the petitioning spouse, such as dissolving the bonds of marriage, establishing the custody and visitation of children, child support and/or spousal maintenance, and dividing the property and debts between the parties.

If you believe you and your spouse can agree on all matters, Minnesota law provides that both parties can join in a petition for a divorce or legal separation in a Joint Petition (the parties are referred to as "Joint Petitioners"). If you have also reached agreement on all issues, a Joint Petition and Stipulation can be prepared for your signatures which will expedite the proceeding.

Call Minnesota's Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or to arrange your complimentary consultation.

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My Question: What happens after the proceeding begins? Can I receive immediate relief?

Answer: After the Summons and Petition are delivered to the responding party, the petitioner may desire or need immediate, interim relief, such as interim child support or spousal maintenance, or Court assistance to set an interim custodial relationship or schedule visitation. Unless satisfactory settlement of these issues can be made without Court assistance, a court hearing may be held shortly after delivery of the Summons and Petition for this purpose. This "Hearing for Temporary Relief" is intended to determine the legal rights and obligations of each spouse while the case is pending.

In many of the metro counties, parties are required to attend an Initial Case Management Conference (ICMC) following the filing of the Summons and Petition. At this informal hearing, the assigned judicial officer and the parties and their attorneys meet to discuss matters involving temporary relief and identify mutually agreeable temporary arrangements which often eliminates the need for a separate hearing. An Order will issue after the hearing setting forth the binding agreements of the parties.

If a temporary hearing is needed, the parties must submit formal statements (affidavits) and financial information in advance of the hearing and the Court will make temporary decisions about whether one of the spouses will be granted the exclusive occupancy of the home, which parent will have physical custody of the child or children, the amount of temporary child support and/or spousal maintenance (formerly called "alimony"), how debts or obligations will be handled during the proceeding and other requests as either party may request the Court to consider. The Order for Temporary Relief determines the rights and responsibilities of the parties until a final decision can be made or until it is further modified by court order.

Although the Order is not supposed to prejudice anyone's rights at later hearings, the Order may remain in effect for many months and may, in fact, ultimately influence the final terms of the divorce. For this reason, it is strongly advisable that both parties have competent legal assistance at an initial case management conference and/or temporary hearing.

My Question: How is divorce information obtained?

Answer: It is often necessary to obtain information and documents from the other spouse. The process of obtaining information from the other spouse is called "discovery." Most often, the attorneys representing the parties exchange information on an informal basis by responding to requests made by the other attorney. By Rule, certain financial information must be exchanged by the parties and provided to the Court for setting financial obligations. If informal exchange of information does not provide meaningful information, the rules governing divorce proceedings provide for more formal tools to obtain this information. Some of the formal tools that lawyers use in this "discovery" process include the following:

* Interrogatories: These are written questions to which the other spouse must respond, in writing and under oath.
* Requests for Production of Documents: These requests are made to review and copy records in the possession or control of the other spouse.
* Depositions: A deposition is a question and answer procedure where one party is asked questions while under oath in the presence of a court reporter. The court reporter prepares a written transcript of the questions and answers/testimony.
Other discovery tools are available and may be used to address unique issues presented in a divorce proceeding. Because formal discovery is costly and time-consuming, every effort should be made to provide full and complete information informally to the other party.

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My Question: Can my spouse and I settle our case without going to Court?

Answer: Yes. After both lawyers have carefully questioned their clients and obtained the necessary information in the discovery process to familiarize themselves with the important facts, settlement negotiations take place, either formally or informally between the attorneys and the parties. Offers and counter offers are made by letter, telephone and sometimes at meetings at which the attorneys and spouses are all present. Often times, couples are either encouraged or ordered to attend a dispute resolution process, such as mediation, where a “neutral” person works with the parties to resolve disputes by compromised agreement. Because mediation is now required by Minnesota law, you can expect to participate in this process.

Most divorce cases are eventually settled without the necessity of a contested trial. When settlement is reached, the agreements are written into a document called a "Stipulation" or "Marital Termination Agreement." This document encompasses all of the terms and conditions of the resolution of your case.

Call Minnesota Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or to arrange your complimentary consultation.

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My Question: What happens after we settle our case? What if we can't reach a settlement?

Answer: After the Stipulation has been signed, one of the spouses may appear at a very brief hearing so the Court can review and approve the agreements and enter a "Judgment and Decree." The Judgment and Decree is the document that formally terminates the marital relationship and establishes the permanent legal obligations of the parties. This document is commonly referred to as the divorce decree.

If a full agreement for settlement is not reached, the Family Court Judge or Referee usually holds a pre-trial or settlement conference. At this conference, areas of agreement and dispute are discussed. These discussions often help the parties settle their case. If not, various procedural matters can be handled and a trial date will be scheduled.

At a contested trial, both parties have the opportunity to testify and call witnesses to support their point of view and positions on all contested issues. In Minnesota, divorce cases are decided by a judge, not by a jury. The judge will listen to the testimony of the witnesses and the arguments of the lawyers, review documentary evidence and then make a decision.

My Question: What law applies to divorces in Minnesota?

Answer: In making any decision related to a divorce proceeding, the trial judge is guided by standards set forth in the Minnesota Statutes, chapter 518, Chapter 518A as to child support, and case law in Minnesota construing these statutes.

My Question: Do I get to keep property I owned before my marriage?

Answer: Most of the time you will be entitled to keep this property if you can prove the property is your non-marital property. Under Minnesota law, nonmarital property is defined as property (including land, furniture, jewelry, bank accounts, investment accounts, retirement accounts, cars) owned prior to marriage, or an inheritance, gift or bequest to either party prior to or during the marriage. The value of this property must be traced through the marriage and the burden of proving the non-marital source rests entirely on the person making the claim. For this reason, if you are going to make such a claim, you will need all documents to trace the monies or property back to your first purchase of the property and any funds used to acquire the property. In the case of inherited property, you will need to provide the documentation showing the inheritance. For example, the Will of your relative or the letter or receipt evidencing the payment to you from the Estate. Additionally, there are times when a pre-marital debt is paid off during the marriage by refinancing. The use of new debt to pay off premarital debt should be addressed in the divorce property settlement.

Call Minnesota Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or to arrange your complimentary consultation.

How_is_Custody_of_Children_Decided in Minnesota?

In making its decision about custody of children in a Minnesota legal separation, divorce or paternity proceeding, a Court will determine which custodial alternative will serve the "best interests" of the children. The Court must decide:

* Legal custody: Legal custody involves is the right to make major decisions about a child's upbringing, including the decisions concerning the child's education, medical, and religious upbringing; and

* Physical custody: Physical custody involves the future residence of the child (where and with whom the child or children will physically reside).

Because both legal custody and physical custody may be either "sole" (where the daily care is controlled by one parent) or "joint" (daily care is structured between both parents), many different custodial alternatives exist.

A. In evaluating the "best interests of the child" for purposes of determining issues of custody and parenting time, the court must consider and evaluate all relevant factors, including the following factors:

(1) a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;

(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;

(5) any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;

(6) the history and nature of each parent's participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

(8) the effect on the child's well-being and development of changes to home, school, and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;

(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

B. The foregoing clauses will govern the application of the best interests of the child factors by the court. In addition:

(1) The court must make detailed findings on each of the factors in the foregoing clauses based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court must consider that the factors may be interrelated.

(2) The court must consider that it is in the best interests of the child to promote the child's healthy growth and development through safe, stable, nurturing relationships between a child and both parents.

(3) The court must consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child's needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.

(4) The court must not consider conduct of a party that does not affect the party's relationship with the child.

(5) A disability alone, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child.

(6) The court must consider evidence of a violation of section 609.507 in determining the best interests of the child.

(7) There is no presumption for or against joint physical custody, except as provided in clause (9) below.

(8) Joint physical custody does not require an absolutely equal division of time.

(9) The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children as referenced in A (12) above.

C. In a proceeding involving the custodial responsibility of a service member's child, a court may not consider only a parent's past deployment or possible future deployment in determining the best interests of the child. For purposes of this paragraph, "custodial responsibility" has the meaning given in section 518E.102, paragraph (f).

Question: Is there any help offered by the Court?

Yes. In disputed custody and/or visitation proceedings, the parties are sometimes referred by Order to family court services for a custody evaluation or parenting time evaluation. Following interviews and review of collateral source information, the assigned staff member from family court services will issue a report containing recommendations to the Court for custody and parenting time (formerly known as visitation). This report is often given great weight in the final decision of the Court.

This Article is merely an introduction to some of the questions that are frequently asked. Please review our other articles on child support and spousal maintenance for an overview of those issues. Because every person's situation is unique and because the law itself is constantly changing, please do not rely solely on this overview in making any decision about a specific situation.



Please feel free to call Minnesota's Best Divorce Attorney Paul Shoemaker at 952-224-4605 for your complimentary consultation.

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© 2019-2023 Paul F. Shoemaker

Call Minnesota's Best Divorce Attorney Paul Shoemaker today at 952.224.4605 for more information or to arrange your complimentary consultation.