Common Questions About Minnesota Family Law

This is a complicated question and it deserves a complicated and thorough response.  Set up an appointment for a consultation with an experienced divorce attorney.   Some other ideas:  Having a comprehensive, legally enforceable prenuptial agreement is probably your best bet.   But if you are past that point, the best plan is to make sure you are aware of all of your family finances, both assets and liabilities.   Take a look at your recent bank and credit card statements.   Make sure you know the value of assets and debts you and your spouse brought into the marriage.  Hold onto statements that demonstrate those values at the time you got married.

Minnesota law (Minn. Stat. §518A.175, Subd. 3), provides “The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child’s residence to be moved to another state.”

The statute provides a test that weighs the best interests of the children related to the move, against the necessity and relative benefits of a proposed move to the parent proposing the move.

You leave this task to a qualified divorce attorney and her team. When we have reason to believe that a spouse has been moving money or trying to obscure assets, we may bring in forensic or financial experts to evaluate the evidence. Don’t try to do this on your own without first consulting an experienced divorce attorney.

According to Minn. Stat. § 518.17, custody in Minnesota is determined based on the best interests of the children, including: (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.

In considering these factors, the Court is guided by these considerations:

(1) The court must make detailed findings on each of the factors in paragraph (a) 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 shall consider that the factors may be interrelated.

(2) The court shall 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 shall 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 shall not consider conduct of a party that does not affect the party’s relationship with the child.

(5) 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 shall 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).

(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 paragraph (a), clause (12).

https: //www. revisor .mn .gov/ statutes/ cite/ 518.17

The Court will make a “just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property.” (Minn. Stat. §518.58). These findings are based “on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.” Id.

A court will also consider “the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.” The court assumes each spouse “made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.” Id.

For the purposes of division in a divorce, marital assets are valued “as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.” Id.

https: //www .revisor. mn.gov /statutes /cite /518.58

You don’t necessarily need to physically go to the actual physical courthouse to finalize your divorce.   During COVID-19, almost all of our hearings are being handled remotely, and we expect that the Courts will continue to follow this trend after the pandemic rules no longer apply.   But as a practical matter, where both parties have attorneys, we are able to handle virtually all of the divorce process without requiring you to physically appear in court.

Frequently, when people ask if they need to “go to court”, they are thinking about a full blown trial, with witnesses and exhibits, and all of the high-drama and pageantry that a formal court proceeding can entail.   To that question, the answer is, “Absolutely and unequivocally, not.”  The vast majority of divorce cases will settle, and that is always our first resort, and the best outcome for families.   That is the objective—to finalize a divorce settlement, to minimize conflict, to avoid adversarial process, and to get people that strong foundation needed to move forward from this uncomfortable pivot point in life.

Does the Court need to be involved?   Well, yes, at least formally.   In order to end a marriage, the court needs to enter a judgment and decree of dissolution of marriage.  In order to do that, the court needs some formal paperwork to be filed to invoke its jurisdiction to enter the decree.  We can’t avoid this important step.

We hear from a lot of people who want to mediate, in order to “avoid going to court”.  One way or another the court will always be involved in any divorce.

Every relationship is different. You will know yours better than anyone else – and if you think it might be time to move on, you should take the time to learn more about your options. This can be a tough decision to make, but it is important that you give yourself the time and space you need to determine if this is right for you.

This is really going to depend on several different factors. Some divorces go very smoothly, and everything is resolved without much conflict between the parties. Others are more complicated, and result in high-conflict, high-stress litigation that can sometimes leave all parties unhappy. Our goal is to try to work things out as best we can, but, if your spouse is unwilling to be reasonable, we are ready to try your case. We will present you with your options and work with you whatever course you decide to take.

Minnesota is an equitable division state. This means that your assets and debts will be divided in a way that is considered “fair.” What’s fair is often the source of pretty significant disagreements between the parties. Finding common ground here can be a real challenge. Even if you and your spouse think you have something worked out between the two of you, you should still consult an experienced attorney to make sure that you are not making any decisions that will have a negative impact upon you in the future. We have more information about asset division here on our website.

Child custody is another issue that often complicates divorces. Couples want to make sure they remain actively involved with their kids, but sometimes the kids are the ones who are stuck in the middle of a divorce. We work hard to find an arrangement that meets your needs before the court needs to become involved. However, if an agreement is not possible, we are ready to demonstrate why your requests are in the kids’ best interests.

Maybe. There are certain items – such as child support or child custody agreements, and under some circumstances, spousal maintenance – that allow you to revisit them if there has been a significant change in circumstances. Other matters, such as property division, can be extremely difficult to revisit. You want to make sure that you get things right the first time to avoid finding yourself stuck in an impossible situation.