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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.