Below are some of the common questions that are raised relating to a possible divorce. Click on any of these questions to get general answers. If you have more specific questions, please feel free to contact our office or call 1-320-262-3551.

What is a dissolution of marriage?

Dissolution of marriage (commonly called a divorce) is a legal proceeding to end a marital relationship. The court order of dissolution will also establish custody, visitation and support of minor children, award spousal maintenance (formerly called alimony), make a fair, not necessarily an equal, division of debts and property between spouses, and may order one party to pay part or all of the other’s court costs.

What are the grounds for divorce?

In Minnesota, there is only one ground for divorce of a marriage: an irretrievable breakdown of the marital relationship. This means that there is no reasonable prospect of reconciliation of the differences between the marriage partners and that the marriage cannot be saved.

How is divorce different from legal separation?

A divorce ends a marriage; a legal separation involves the same procedures as a divorce, but remarriage is prohibited. You may have religious, economic or other reasons for wanting a “legal separation” instead of a divorce. In both actions, the court will decide issues of custody, support, maintenance, property, debts and court costs. Both a divorce and a legal separation require an irretrievable breakdown of the marital relationship.

What if you ask a judge for a legal separation and your spouse asks for a divorce?

In this case, the judge will grant the divorce.

Can I get an annulment?

If you get an annulment, the judge will say that, legally, your marriage never existed. You will be able to remarry any time after the judge grants the annulment. For example, you may be able to get an annulment if you were induced to marry by force or fraud. Most people, however, do not qualify for an annulment.

How long must I live in Minnesota before I can start a divorce?

In most cases, you or your spouse must live in Minnesota for 180 days (about six months) before you can file for divorce.

How long does it take to get a divorce?

Except by court order for certain emergencies, a minimum of several months usually elapses between serving the initial papers and the final hearing date. Most divorces take longer than several months, depending on the complexity of the case, the ability of the spouses to agree on issues (for example, property division or support), and the amount of other business before the court. A divorce is not effective until the Judgment and Decree is entered in the court records.

How does the court decide who will get custody of minor children?

You and your spouse can decide who will take care of your children. You have two choices: “sole custody” or “joint custody.”

Sole custody means one parent has primary responsibility for bringing up the children. Joint custody means both parents share the responsibility.

If you and your spouse choose joint custody, you can decide on joint legal custody, joint physical custody, or both. With joint legal custody, both parents are involved in making important decisions about the children, such as where they will go to school. Joint physical custody means that the children spend time living with each parent on a regular basis. They do not have to spend equal amounts of time with each parent, although they may do so. Many situations involve sole physical and joint legal custody of the children.

If you and your spouse cannot agree on custody, the court will determine the physical and legal custody of your children. The decision is based on one overriding concern: the best interests and welfare of the children.

Whether you decide on sole or joint custody, the law works to help children see both parents regularly, unless there are good reasons to keep them apart. In almost all cases, the noncustodial parent has the right to visitation with a minor child. Visitation may not be conditioned upon payment of child support. In some instances, grandparents and certain other persons may also petition the court for visitation rights.

If I have custody, will I receive child support payments?

Both parents owe their children a duty of support, even after a marriage ends. Child support is usually paid by a noncustodial parent to a custodial parent. The amount of support is determined by the court according to guidelines set by the legislature. The amount is based upon a percentage of the noncustodial parent’s monthly income. Payment of child support must be made regardless of any problems which may arise about visitation.

What is maintenance?

Maintenance (formerly called alimony) is payment of money on a regular basis from one spouse to the other during or following a divorce. The payments may be for a specific length of time or may last indefinitely. They are based on one spouse’s need for financial help.

The spouse responsible for paying maintenance may take a tax deduction, and the recipient of maintenance must report it as taxable income. (Child support payments are not deductible nor are they considered income to the recipient.)

How does the court decide whether to award maintenance?

You and your spouse may agree to the amount of maintenance. If you cannot agree, the judge will decide whether to award maintenance payments, and if so, whether it will be for a limited or indefinite length of time. In so doing, the court considers many factors, such as the length of the marriage, the standard of living enjoyed during the marriage, the relative incomes of the parties and their respective needs, and the emotional and physical health of the parties.

How does the court divide the property and bills?

Generally, all of the parties’ property, including assets such as pension plans, is subject to division. The court has broad power to divide marital property “equitably” or fairly. “Nonmarital property” is real estate, money, furniture or other belongings that you or your spouse owned before you were married. It also includes property received either as a gift or inheritance. But even this property may be divided under certain circumstances.

If you and your spouse cannot agree, the court may consider many factors in distributing property and in determining liability for debt repayments, such as child custody, earning ability, length of marriage, and the physical and emotional health of the parties.

Can the parties getting divorced use the same lawyer?

Ethical rules generally prohibit an attorney from representing both parties in a divorce action. Even if you and your spouse seem likely to agree on the terms of your divorce, there is always the potential for breakdown of agreements in a divorce. Occasionally a lawyer will represent one spouse and the other will waive his or her right to legal counsel and represent himself or herself. The unrepresented party should consider having the terms of an agreement reviewed by a second attorney, to ensure an understanding of the legal consequences of the agreements.

Generally, each party is responsible for his or her own legal costs and attorney’s fees. Under certain circumstances, however, the court may order a contribution from the other party.

What is a uncontested divorce?

One party files for divorce, and the other spouse does not fight it.

What is a contested divorce?

The spouse against whom the divorce is filed “fights” to try to either prevent the divorce or prevent the other spouse from obtaining certain benefits from the divorce.

What is a default divorce?

A “default divorce” is one in which a spouse (the “petitioner”) files for divorce (either with or without attorney) and the other spouse (the respondent) does not file an answer with the Court. Instead, the parties work out an agreement on all issues, and a “Marital Termination Agreement” signed by both parties, is filed with the Court.

If a court appearance is required, only the party who filed the petition for divorce is required to appear.

What is a simplified divorce process?

A simplified divorce process is available in circumstances where the parties have: (1) no living minor children have been born to or adopted by the parties before or during the marriage, unless someone other than the husband has been adjudicated the father; (2) the wife is not pregnant; (3) they have been married fewer than eight years as of the date they file their joint declaration; (4) neither party owns any real estate; (5) there are no unpaid debts in excess of $8,000 incurred by either or both of the parties during the marriage, excluding encumbrances on automobiles; (6) the total fair market value of the marital assets does not exceed $25,000, including net equity on automobiles; (7) neither party has nonmarital assets in excess of $25,000; and (8) neither party has been a victim of domestic abuse by the other.

A couple qualifying under all of these criteria may obtain a divorce decree easily by  filing a sworn joint declaration with the signature of both parties notarized. Forms for this process are available through the Court Administrator’s Office.