Frequently Asked Questions

Topics covered:


General Concerns

Can I keep my spouse from getting a divorce?

ANSWER: No. Minnesota is a no-fault state. If one spouse says the marriage isn't working, that is sufficient evidence to establish an irretrievable breakdown.

If my spouse had an affair, could the court still award him or her custody, property and alimony?

ANSWER: Yes. Minnesota law specifically directs the court to disregard marital misconduct in making any decisions in a divorce. Sometimes marital misconduct has an indirect impact on the court's resolutions. One example of indirect impact would be your spouse withdrawing money from your savings account and giving it to a significant other as a gift.


Court Procedures

How long will it take to get divorced?

ANSWER: Several weeks to over a year. The amount of time it takes varies with the court's workload and how long it takes to gather information and get a resolution, whether by agreement or trial. The fastest way to get divorced is to have all issues worked out before you file anything with the court.

Can I get divorced without any court appearances?

ANSWER: Yes. No court appearances are required to approve the dissolution if you are using the summary dissolution procedure (no kids, property limit, no maintenance) or are proceeding by administrative review. Both of these procedures require written settlement agreements signed by both parties. If you have children, the agreement will also need to be signed by an attorney for each party.

Can I represent myself in court?

ANSWER: Yes. The court will expect you to use the proper forms and follow court rules.


Costs

How much will it cost to get divorced?

ANSWER: The range is from zero to tens of thousands of dollars. If you are low income, you may apply to the court for waiver of the filing fee and the fee for serving legal papers by filing the paperwork to proceed in forma pauperis. Otherwise the filing fee in most counties is $400 for a Petitioner and $400 for a Respondent. The filing fee for Motions is $100 for each side of the case; $100 if the motion is limited to child support issues.

The biggest variable in the cost of dissolution is the amount of attorney time that you use. Cases that settle early on with little attorney time cost substantially less than cases that go to trial after many court appearances.


Temporary Issues and Timing

Do I need a legal separation?

ANSWER: Probably not. A legal separation is a separate type of lawsuit that is similar to a marital dissolution in that it divides property, makes a custody decision, and awards support and maintenance. However, when a legal separation is granted, the two of you are still married.

What is a temporary order?

A temporary order is part of a divorce lawsuit and sets out how things will be arranged on a temporary basis until the case is finally resolved. Some people can reach informal agreements on all important temporary issues and will follow through on those agreements.

If that isn't the situation for you, you may want the court to make legally binding temporary orders on issues such as possession of the homestead, custody, child support, maintenance, division of debts and so on.

Does it make a difference whether I start the divorce or wait for my spouse to start it?

ANSWER: Yes. If you start the divorce, you control the point in time when the court has the power to make binding orders over the two of you. This may be important if you need a temporary order.


Custody and Visitation

Isn't 50-50 custody more fair than when only one parent gets custody?

ANSWER: The court uses the concept of the best interests of the child to determine custody rather than the concept of fairness. It has an obligation to order a custody arrangement and parenting time schedule that allows both parents to have a continuing relationship with their children. See Minn. Stat. Sec. 518.17, 518.175.

What are my chances of getting joint legal custody?

ANSWER: Good. All parents are presumed to be entitled to joint legal custody unless there has been domestic abuse between the two of them or one parent shows some other specific reason why joint legal custody won't work. Legal custody is the authority to make important decisions for a child.

What is the difference between sole physical and joint physical custody?

ANSWER: "Sole physical custody" means that one parent is responsible for the routine daily care and control and the residence of the child. "Joint physical custody" means that the routine daily care and control of the child is structured between the parents. See Minn: Stat. Sec. 518.003© and (d).

Minnesota statutes also allow for the option of using your own terms to describe how you will parent your children after a dissolution or custody decision. If you are interested in this option, you and the other parent will work out a detailed Parenting Plan that may include financial support for the child determined in a reasonable way by the two of you. See Minn. Stat. Sec. 518.1705.

At what age can children choose where they want to live?

ANSWER: There is no set age. In general, the older the child, the more weight the court will give the child's preference. For older teens, the court will give the child's preference considerable weight. In any custody case — no matter what the age of the child — the child's preference is only one of at least 13 different factors that the court is required to consider in making the custody decision. See Minn. Stat. Sec. 518.17.


Paternity

Is paternity testing necessary if I really believe I'm the father?

ANSWER: No. However, once you have agreed that you are the father in a legally binding way, it is difficult to change. Common ways of agreeing that you are the father are signing a Recognition of Parentage (which is sometimes referred to as a ROPE and is usually signed at the hospital) and admitting that you are the father in a court proceeding that results in a formal order on paternity. A ROPE or an adjudication of paternity gives you the right to seek custody or visitation with the child; it also makes you financially responsible for the child.


Child Support

What are the child support guidelines?

ANSWER: The child support guidelines are a formula devised by the legislature to determine a parent's financial obligations to a minor child when parents do not live together. You can use an Internet child support calculator at http://childsupportcalculator.dhs.state.mn.us/calculator.aspx to generate basic support, medical support contribution, share of unreimbursed health expenses and child care contribution. To use the calculator, you will need the following information: each party's gross income, how many children they have together, any other children they have from other relationships, the amount of parenting time, the amount a parent pays for medical support and the amount a parent pays for work-related child care.

Parents sometimes devise other ways to share the children's expenses.


Spousal Maintenance

If my spouse makes more money than I do, does he or she have to pay me any money?

ANSWER: In some cases, yes. When one spouse is required to contribute to the other spouse's income, the court makes an award of spousal maintenance (formerly this was called alimony). Maintenance is awarded when one spouse cannot meet his or her own needs and the other has the ability to pay. It is awarded in amounts and for periods of time based on factors, such as the length of the marriage, the standard of living during the marriage and the reason why the requesting spouse cannot be self-supporting. Minn. Stat. Sec. 518.552.


Property and Debts

Do I get to keep the house and the pension since they're in my name only?

ANSWER: No. If you acquired those assets during the marriage, they are considered marital property that is subject to a just and equitable division. See Minn. Stat. Sec. 518.58. In the vast majority of cases, the court divides the value of marital property 50-50.

There is one exception to the rule that assets acquired during the marriage are marital property. Assets that meet the definition of nonmarital property would most likely be returned to you. See Minn. Stat. Sec. 518.54(5).

Some examples of nonmarital property are: assets owned by you prior to the marriage; assets acquired using an inheritance that was made to you and you alone; gifts made to you and you alone; and proceeds from lawsuits representing permanent personal injury to you. These are only some examples of nonmarital property.

In very exceptional cases, the court can award up to 50 percent of your nonmarital property to your spouse.

What do we do about the debts?

ANSWER: They get divided along with the property in a just and equitable manner. Unlike the prevailing trend to divide marital property 50-50, there are more variations on how debts are split.

If you have additional questions or need additional information, you should consult an attorney. The answers to the questions above provide general information and do not represent legal advice for any given case.


Choice of Process

How can I get my spouse or my ex to make an agreement with me?

  1. Meet with you.
  2. Meet with the two of you and your attorneys.
  3. Participate in mediation.
  4. Use other means of alternative dispute resolution (ADR) such as early neutral evaluation.
  5. Agree to follow collaborative or cooperative law protocols.
  6. Opt into an early case management program instead of the traditional litigation track.
  7. Devise procedures that meet the unique characteristics of your case.

All of the above options are intended to keep the parties at the negotiating table and to facilitate discussions toward agreement.

All statutes referenced above can be viewed HERE.