Common Family Law Questions
What is a dissolution of marriage?


Dissolution of marriage, or divorce, is a legal proceeding to end a marriage relationship. During the dissolution of marriage process, parties resolve issues of child custody, parenting time (visitation), child support, spousal maintenance (alimony), and property division.

What are the grounds for a divorce?

Minnesota is a no-fault state, so neither party has to prove that the other did something wrong in order for the divorce to be granted. Therefore, in Minnesota there is only one ground for dissolution of marriage - an irretrievable breakdown of the marriage. In order to prove this ground, you must state that your marriage is irretrievably broken with no chance of reconciliation.

What is a legal separation?

In a legal separation, the parties remain married but the court determines all the issues as if it were a divorce. The paperwork and cost is the same for a legal separation as it for a divorce. A legal separation is generally used when parties hope to eventually reconcile, and can be converted into a divorce proceeding by either party.

What are the requirements to file for divorce in Minnesota?

In order for you to be eligible for a divorce in Minnesota, one of the parties must reside in Minnesota for 180 days before a divorce is filed. There is also a Court filing fee that must be paid.

What are my rights before the divorce is started?

Unless there is a court order, before the divorce is started you and your spouse have the same legal rights, whether or not you are living together or are separated. This means that if there are children of the marriage, you and your spouse have an equal right to make decisions about your children including where the children live, where they go to school, or what doctor they should see. Likewise, you and your spouse have an equal right to sell, give away, or dispose of any property that you own as a couple including withdrawing money from a joint bank account, and charging items to a joint credit card. However, neither party can sell anything that is in the other party’s name, cash the other party's checks, or sell real estate that is in both spouses names. Also, each spouse continues to be responsible for certain debts made by the other spouse, including medical bills, household needs for the family, and joint credit card payments.

How do I start a divorce proceeding?

In Minnesota, a divorce is started when one spouse (the Petitioner) has a Summons and Petition for Dissolution of Marriage (Petition) personally served on their spouse (the Respondent). The Summons is a legal notice that tells the Respondent that divorce proceedings have been started, and that the Respondent has 30 days to reply. The Petition is a legal document that gives notice to the Respondent, and the Court, about what issues the Petitioner believes should be resolved during the divorce. The Petition gives an overview of the parties’ basic information including addresses, number of children, and information about assets and liabilities. The Petition also includes a section where the Petitioner tells the Court how he or she would like the issues outlined in the Petition to be resolved. One spouse does not gain the advantage by being the first to file or serve the Summons and Petition since Minnesota is a no-fault state.

Once the Summons and Petition have been personally served on the Respondent, he or she has 30 days to serve and file an Answer. An Answer is a legal document in which the Respondent responds to the issues outlined in the Petition, and tells the Court how he or she would like these issues to be resolved. If the Respondent does not serve and file an Answer in 30 days then  he or she is in default. Once the Respondent is in default, the Petitioner can proceed with the divorce without further notice to the Respondent, and is generally granted the relief stated in the Petition. If the Respondent does file and serve an Answer in 30 days then the parties can try and reach a settlement agreement or the case will move towards trial, where the Court will decide the issues.

Once a divorce is started, neither party may dispose of any assets (money or property) except for those assets that are necessary for the expense of everyday life (such as rent/mortgage, food, or clothing), or those necessary for  the generation of income or preservation of other assets,  by agreement in writing, or to retain an attorney for the divorce. Also, all currently available insurance coverage must be maintained and continued without change in coverage or beneficiary designation.

During the divorce process, the parties are required to attempt some form of alternative dispute resolution, unless there has been domestic abuse. Most parties will usually choose mediation. If you or your children have been hurt or threatened by your spouse you do not have participate in mediation. You must immediately tell your attorney or the mediator if there has been domestic violence.

What is mediation?

Mediation is an alternative dispute resolution process where the parties try  to come to an agreement on some or all of the issues in the case with the help of a mediator. A mediator is a neutral third-party who is generally an attorney trained in mediation. The mediator works with the parties to identify the issues and help them to reach their own agreement. The mediator will not make decisions during this process but will help you and your spouse come to an agreement that works best for your situation. Mediation is completely confidential and if unsuccessful, the Court will not find out what was said at mediation.

Mediation is designed to give both spouses an opportunity to safely express their viewpoint. Therefore, mediation is not recommended in situations where there has been or is continuing domestic violence.  If you do not feel you have equal power, or if you feel unsafe, you can stop the mediation process at any time without reaching an agreement.

What is a temporary hearing?

After the divorce is served and filed, but before the final decree is issued, it is often necessary to get a court order setting out temporary rulings on certain issues. These rulings are issued after a temporary hearing has been held. These temporary rulings will then last throughout the divorce proceedings. Issues covered at temporary hearings generally include child custody, child support, spousal maintenance, and living arrangements.

Either party can request a temporary hearing. The hearing is based on the issues outlined in motion papers, which are filed by each party’s attorney, and on affidavits submitted by each party. Generally no oral testimony from the parties will be allowed at this hearing. The judge will then look at all of the papers filed by both sides, the attorneys will speak for the parties, and the judge will make the decisions.

What are the types of custody?

There are two types of custody, legal custody and physical custody.


The first type of custody is Legal custody. Legal custody means the right to determine the child's upbringing, including decisions about education, healthcare, and religious training. Joint legal custody means that both parents have equal rights and responsibilities in making legal custody decisions. This includes the right to participate in major decisions during the child's upbringing, including education, healthcare, and religious training. Sole legal custody means that only one parent has the right to make legal custody decisions. In other words, the parent that is not granted sole legal custody will not be allowed to make major decisions about the child’s upbringing including decisions about education, healthcare, or religious training. The courts prefer to award joint legal custody, unless it determines that the parties cannot cooperate and agree on these decisions, or if there has been domestic abuse.


The second type of custody is physical custody. Physical custody means the right to make decisions about the routine daily care and control and the residence of the child. In other words, physical custody is the right to make day-to-day decisions about the child. Joint physical custody means that the routine daily care and control and the residence of the child is structured between both parties. The court will grant joint physical custody if the parents agree. Sole physical custody means that only one parent will have the right to make decisions about the routine daily care and control and the residence of the child. The other parent will normally be allowed parenting time (visitation) with the children. In Minnesota, Courts favor awarding sole physical custody to one party or the other.

What if we cannot agree on who should have custody?

If the parties cannot agree on who should have legal and physical custody of the children, the court may order a custody evaluation and/or a guardian ad litem for the children to determine the "best interests of the child." These people will gather information about the family situation from each parent and others close to the family. Then the evaluator and/or the guardian will make a recommendation to the judge about custody and/or parenting time (visitation) arrangement. Psychological evaluations and chemical dependency evaluations may also be done on the parties, if appropriate.


The judge will then make a determination about who should have legal and physical custody of the children and what the parenting time schedule should be based on the “best interests of the child.” The best interests of the child are determined by looking at a number of different factors including:


·         the wishes of the child's parent or parents as to custody;


·         the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;


·         the child's primary caretaker;


·         the intimacy of the relationship between each parent and the child;


·        the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;


·         the child's adjustment to home, school, and community;


·        the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;


·         the permanence, as a family unit, of the existing or proposed custodial home;


·         the mental and physical health of all individuals involved; except that a disability, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;


·       the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;


·         the child's cultural background;

·        the effect on the child of the actions of an abuser, if related to domestic abuse, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

·        except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

What are my visitation rights?

The parent who does not have physical custody is usually granted the right to visit the children; these visits are called parenting time. Parenting time is determined by what is in the best interests of the child. The parties can either agree to a parenting time schedule, or if the parties cannot agree the court will create a parenting time plan for the parties.

How much child support can I get?

As of 2007, the amount of child support is determined under a shared income model. Under this model the gross income of both parties and the amount of time the child is with each parent is taken into account to determine the amount of support owed. Medical and child care costs are also considered in the calculations under the new law. In order determine a rough estimate of child support obligations, see the Minnesota Child Support Calculator here.

Child support can generally be modified when there has been a significant change in circumstances that justifies the modification. A significant change in circumstances includes a significant increase or decrease in either parent’s income, a job change, significant change in the needs of the child, or a change in the child support laws. A judge must approve any modification of child support, including those agreements made by the parties, in order for those changes to be enforceable.

What is spousal maintenance?

Spousal maintenance, also known as alimony, is a regular payment of money from one spouse to the other. There are several factors that the court looks at in determining whether maintenance is appropriate. These factors include the length of the marriage, the financial resources of the parties, the possibility of either spouse becoming self supporting, the loss of retirement benefits by one spouse, the particular needs of one spouse, and the ability of the other to pay spousal maintenance. The amount, length, and necessity of spousal maintenance vary depending on the facts in each individual case.

How long do I have to pay spousal maintenance?

Spousal maintenance can be awarded either permanently or temporarily. If spousal maintenance is awarded permanently then the spouse ordered to pay must pay the former spouse until the former spouse remarries, until either party dies, or until the court modifies the order. If spousal maintenance is awarded temporarily the maintenance is paid for a defined period of time to allow the former spouse to become financially stable, to find employment, or to obtain an education.

How does the court divide our property and bills?

There are two types of property - marital and non-marital. Marital property is property acquired during the marriage. If the parties cannot agree on how these assets and liabilities should be divided, in Minnesota, property, bills, and debt are divided equitably, or fairly, between the parties by the Court. In order to determine an equitable division of property, the Court will look at a variety of factors and the ultimate division will depend on individual facts of each case. Some factors the court will consider include the income of each party, the monthly expenses of each party, child custody, health of each party, and the length of marriage.

Non-marital property is property acquired before the marriage or property received by gift or inheritance to one party but not to the other during the marriage. In order to prove property is non-marital, the party must be able trace the property to a non-marital source. Generally, each party can keep their non-marital property. However, in some cases the Court will even divide non-marital property.

We aren't married but have a child together,
what rights does the father have?

A mother that was not married to the child’s father at the time the child was born has sole physical and legal custody of the child until there is a court order stating otherwise.

The parents often sign a Recognition of Parentage, which states that both parents agree that the man signing the Recognition of Parentage is the father of the child. The Recognition of Parentage is used to speed up the child support process, but does not automatically give the father any rights to custody or visitation. The father must bring a paternity action with the Court in order to resolve custody and parenting time issues. In other words, a paternity action must be started in order for the father to assert his rights. During this paternity action, the court will establish the legal rights and responsibilities of the father. The natural mother, the child, or a public authority may also bring a paternity suit. The same custody definitions and "best interests" standards that are used in dissolutions are used in paternity actions.

What do I do if my spouse is abusing or harassing me?

An order for protection (OFP) is a court order that orders the abuser not commit acts of domestic abuse including shoving, pushing slapping, punching, kicking, pulling hair, choking, stabbing, shooting, locking you in a room, or threatening to harm you. It can also order that the abuser leave the home you share together. Also, the OFP can order the abuser not to have contact with you. It can also order temporary custody, visitation, child support, and the maintenance and use of property.

A harassment restraining order (HRO) is a court order that orders a person to stop harassing and to avoid harassing the petitioner, or to altogether avoid contact with the petitioner. A person may file a HRO if they are a victim of harassment. Harassment includes a single incident of physical or sexual assault, or repeated incidents of intrusive or unwanted acts, words or gestures that have, or are intended to have, a substantial adverse effect on the safety or security of another, regardless of the relationship between the parties.

If you, or your children, are victims of domestic abuse, there are many victim assistance organizations ready to help you. I have included a list of some of those organizations in the Family Law Links section of this site.

Copyright 2010 Robin Dietz-Mayfield and JD Technologies & Counsuling, Inc.


Webmaster e-mail at: