Minnesota Divorce Law

Divorce and Legal Separation in Minnesota




Divorce and Legal Separation in Minnesota

Minnesota Divorce Basics

Divorce in Minnesota is referred to as Dissolution of Marriage.

Residency Requirement:

To obtain a divorce in Minnesota, one of the spouses must have lived in the state, or has been a member of the armed services stationed in the state, for at least 180 days before filing, or has a domicile in the state for at least 180 days before filing.

Filing:

The Petitioner (filing party) may file a Petition for Dissolution of Marriage in the county where either party resides. If neither party resides in the state, and jurisdiction is based on the domicile of either spouse, the proceeding may be commenced in the county where either party is domiciled. If neither party resides or is domiciled in the state and jurisdiction is premised upon one of the parties being a member of the armed forces stationed in Minnesota for at least 180 days before filing, the proceeding may be commenced in the county where the service member is stationed.

The Petitioner must personally serve the Respondent (non-filing party) with the Summons and Petition, unless a Joint Petition is filed. The Respondent has 30 days to answer the Petition. In the case of service by publication, the 30 day time period does not begin until the expiration of the period allowed for publication. In the case of a Counter-Petition for dissolution or legal separation to a Petition for Dissolution or Legal Separation, no Answer to the Counter-Petition is required, and the original Petitioner is deemed to have denied each and every statement, allegation and claim in the Counter-Petition.

Default:

If the Respondent does not appear after service duly made and proved, the court may hear and determine the proceeding as a default matter.

Summary Dissolution Process:

Summary Dissolution is a streamlined process for obtaining a divorce. To qualify for this process, the following requirements must be met:
  • 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;
  • The wife is not pregnant;
  • The parties have been married fewer than eight years as of the date they file their joint declaration;
  • Neither party owns any real estate;
  • There are no unpaid debts in excess of $8,000 incurred by either or both parties during the marriage, excluding automobile liens;
  • The total fair market value of the marital assets does not exceed $25,000, including net equity on automobiles;
  • Neither party has non-marital assets in excess of $25,000; and
  • Neither party has been a victim of domestic abuse by the other.
A couple meeting the qualifying criteria may obtain a judgment and decree by filing a sworn joint declaration with both their signatures notarized, and watching an introductory and summary process video, if then available from the court, and certifying that they watched the video within the 30 days preceding the filing of the joint declaration.

The district court administrator shall enter a decree of dissolution 30 days after the filing of the joint declaration.

Spouseís Name:

In the final decree of dissolution or legal separation the court shall, if requested by a party, change the name of that party to another name as the party requests.


The court shall grant a request unless it finds that there is intent to defraud or mislead. The court shall notify the parties that use of a different surname after dissolution or legal separation without complying with the law is a gross misdemeanor. The partyís new name shall be so designated in the final decree.

If the party requesting a name change has a felony conviction he/she must follow the applicable laws, which include serving a notice of application for a name change on the prosecuting authority that obtained the conviction against him/her.


Legal Grounds for Divorce

Dissolution of a marriage shall be granted by a county or district court when the court finds that there has been an irretrievable breakdown of the marriage relationship.

If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the commencement of the proceeding and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.

A finding that the marriage is irretrievably broken must be supported by evidence that the parties have lived separate and apart for at least 180 days immediately prior to the commencement of the proceeding, or there is serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage.

Agreement:

If both parties by petition or otherwise have state under oath or affirmation that the marriage is irretrievably broken, or one of the parties has alleged this and the other has not denied it, the court shall make a finding that the marriage is irretrievably broken, after hearing.

Approval without Hearing:

Proposed Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree must be submitted to the court for approval and filing without a final hearing in the following situations:
  • There are no minor children of the marriage, and the parties have entered into a written stipulation, or the Respondent has not appeared after service duly made and proved by affidavit and at least 20 days have passed since the time for filing an Answer has expired; or
  • There are minor children of the marriage, the parties have signed and acknowledged a stipulation and all parties are represented by counsel.
In any case where the proposed judgment and decree does not appear to be in the best interests of the minor children, or is contrary to the interests of justice, the court shall schedule the matter for hearing.

Annulment

All marriages prohibited by law shall be absolutely void, without any decree of dissolution or other legal proceedings, with the following exception. When a person whoís husband or wife has been absent for four successive years, without being known to the person to be living during that time, marries during the lifetime of the absent husband or wife, the marriage shall be void only from the time that its nullity is adjudged. If the absentee is declared dead, the subsequent marriage shall not be void.

A marriage shall be declared a nullity under the following circumstances:
  • A party lacked capacity to consent to the marriage at the time the marriage was solemnized, for either of the following reasons:
      a. Mental incapacity or infirmity and the other party at the time the marriage was solemnized did not know of the incapacity;

      b. Due to the influence of alcohol, drugs, or other incapacitating substances; or

      c. Consent was obtained by force or fraud and there was not subsequent voluntary cohabitation of the parties.
  • A party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party at the time the marriage was solemnized did not know of the incapacity;
  • A party was under the age of 16 years; or
  • A party was at least 16 years of age, but under the age of 18 years of age and had not obtained consent of his/her parent or guardian, or a court.
Filing for annulment and subsequent proceedings shall be held the same as in dissolutions. Upon due proof of the nullity of the marriage, it shall be adjudged null and void.

Laws related to property rights of the spouses, maintenance, support and custody of children upon dissolution of marriage are applicable to proceedings for annulment.

No marriage shall be adjudged a nullity on the ground that one of the parties was under the age of legal consent if it appears that the parties had voluntarily cohabitated together as husband and wife after having attained the age of legal consent. Nor shall the marriage of any insane person be adjudged void after restoration to reason, if it appears that the parties freely cohabitated together as husband and wife after such restoration.

An annulment may be sought by any of the following persons and must be commenced within the times specified, but in no event may an annulment be sought after the death of either party to the marriage:
  • On the ground that the party lacked capacity to marry, annulment may be sought by either party or by the legal representative of the party lacking capacity, no later than 90 days after the Petitioner obtained knowledge of the condition;
  • On the ground of impotence, annulment may be sought by either party no later than one year after the Petitioner obtained knowledge of the impotence;
  • On the ground of an underage party, the annulment may be sought by the under aged party or the partyís parent or guardian, before the time the under aged party reaches the age of legal consent.

Property Division

Upon a dissolution of a marriage or an annulment, the court shall 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.

The court shall base its findings on all relevant factors, including the following:
  • The length of the marriage;
  • Any prior marriage of a party;
  • The age and health of each party;
  • The station, occupation, amount and sources of income of each party;
  • The vocational skills and employability of each party;
  • The estate, liabilities, needs, opportunity for future acquisition of capital assets and income of each party; and
  • The contribution of each party 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 shall presume that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage.

Marital property is defined as property, real or personal, including vested public or private pension plan benefits or rights, acquired by the parties, or either of them, to a dissolution, legal separation, or annulment proceeding at any time during the existence of the marriage, or at any time during which the parties were living together as husband and wife under a purported marriage relationship which is annulled in an annulment proceeding, but prior to the date of valuation.

All property acquired by either spouse after the marriage and before the valuation, is presumed to be marital property regardless of how it is titled.

Non-marital property is defined as property, real or personal, acquired by either spouse before, during or after the existence of their marriage which was acquired in the following ways;
  • As a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;
  • Acquired before the marriage;
  • In exchange for or is the increase in value of identified non-marital property;
  • By a spouse after the valuation date; or
  • Is excluded by a valid ante-nuptial contract.
If the court finds that either spouseís resources or property, including the spouseís portion of the marital property, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the marital property, apportion up to one-half of the non-marital property, which is otherwise excluded, to prevent the unfair hardship.

Pension Plans:

The division of marital property that represents pension plan benefits or rights in the form of future pension plan payments:
  • Is payable only to the extent of the amount of the pension plan benefit payable under the terms of the plan;
  • Is not payable for a period that exceeds the time that pension plan benefits are payable to the pension plan benefit recipient;
  • Is not payable in a lump-sum amount from defined benefit pension plan assets attributable in any fashion to a spouse with the status of an active member, deferred retiree, or benefit recipient of a pension plan;
  • If the former spouse to whom the payments are to be made dies prior to the end of the specified payment period with the right to any remaining payments accruing to an estate or to more than one survivor, is payable only to a trustee on behalf of the estate or the group of survivors for subsequent apportionment by the trustee; and
  • In the case of defined benefit public pension plan benefits or rights, may not commence until the public plan member submits a valid application for a public pension plan benefit and the benefit becomes payable.

Maintenance

In a proceeding for dissolution of marriage or legal separation, the court may grant a maintenance order for either spouse if it finds either of the following regarding the spouse seeking maintenance:
  • He/she lacks sufficient property to provide for his/her reasonable needs considering the standard of living established during the marriage, especially a period of training or education; or

  • He/she is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including the following:
  • The financial resources of the requesting party, including marital property apportioned to the party, and his/her ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for him/her as custodian;

  • The time necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment, and the probability, given his/her age and skills, of completing education or training and becoming fully or partially self-supporting;

  • The standard of living established during the marriage;

  • The length of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

  • The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the requesting spouse;

  • The age, and the physical and emotional condition of the requesting spouse;

  • The ability of the paying spouse to meet needs while meeting those of the requesting spouse; and

  • The contribution of each party 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 or in furtherance of the other partyís employment or business.
When there is some uncertainty regarding the necessity of a permanent award, the court shall order a permanent award leaving it order open for later modification.

The parties may expressly preclude or limit later modification of maintenance through a stipulation, if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the courtís findings, and that full disclosure of each partyís financial circumstances has occurred. The stipulation must be made a part of the judgment and decree.

Child Custody and Support

Upon adjudging the nullity of a marriage, or in a dissolution or separation proceeding, the court shall order as it deems just and proper, concerning the following:
  • The legal custody of the minor children of the parties which shall be sole or joint;
  • Their physical custody and residence; and
  • Their support.
Custody:

In a court of Minnesota which has jurisdiction to decide child custody matters, a child custody proceeding is commenced by a parent by filing a Petition for Dissolution or Legal Separation.

In determining custody, the court shall consider the best interests of each child and shall not prefer one parent over the other solely on the basis of the sex of the parent. All relevant factors will be considered and evaluated by the court, including the following:
  • The wishes of the childís parent(s) as to custody;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
  • The childís primary caretaker;
  • The intimacy of the relationship between each parent and the child;
  • The interaction and interrelationship of the child with a parent(s) or siblings and any other person who may significantly affect the childís best interests;
  • The childís 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 childís culture and religion or creed, if any;
  • The childís 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 parent with the child.
The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court may not consider conduct of a proposed custodian that does not affect the custodianís relationship to the child.

In addition to the factors listed above, where either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors when joint custody is sought:
  • The ability of parents to cooperate in the rearing of their children;
  • Methods for resolving disputes regarding any major decision concerning the life of the child, and the parentsí willingness to use those methods;
  • Whether it would be detrimental to the child if one parent were to have sole authority over the childís upbringing; and
  • Whether domestic abuse has occurred between the parents.
The court will generally give preference to joint legal custody when requested by either or both parties, unless domestic abuse has occurred between the parents.

The court may interview the child in chambers to ascertain the childís reasonable preference as to custodian, if the court deems the child to be of sufficient age to express preference.

Parenting Time:

Upon the request of either parent, the court shall grant such parenting time on behalf of the child and a parent that will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.

If the court finds, after a hearing, that parenting time with a parent is likely to endanger the childís physical or emotional health or impair the childís emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant. The court shall consider the age of the child and the childís relationship with the parent prior to the commencement of the proceeding.

Parenting Plans:

Upon the request of both parents, a parenting plan must be created in place of an order for child custody and parenting time unless the court makes detailed findings that the proposed plan is not in the best interests of the child.

Parenting plans must include the following elements:
  • A schedule of the time each parent spends with the child;
  • A designation of decision-making responsibilities regarding the child; and
  • A method of dispute resolution.
A parenting plan may include other issues and matters the parents agree to, regarding the child. Parents voluntarily agreeing to parenting plans may substitute other terms for physical and legal custody, including designations of joint or sole custody, provided that the terms used in the substitution are defined in the parenting plan.

If both parents do not agree to a parenting plan, the court may create one on its own motion, except in instances of domestic abuse against a parent or child who is a party or subject of, the matter.

Parenting Education:

In a contested proceeding involving custody or parenting time of a minor child, the parties must attend a minimum of eight hours in an orientation and parent education program that meets minimum standards established by the Minnesota Supreme Court within 30 days after the first filing with the court.

If past or present domestic abuse is alleged, the court shall not require the parties to attend the same parent education sessions and shall enter an order setting forth the manner in which the parties may safely participate in the program.

Support:

The legislature sets child support policy in Minnesota. The stateís child support guidelines, based on the Income Shares Model, determine support amounts using all the following criteria:
  • The income of both parents;
  • The number of children;
  • The cost of raising a child at different income levels; and
  • The availability and cost of medical support.
The guidelines use each parentís monthly gross income and consider basic, medical and child care support. A parentís monthly gross income is reduced by the amount of spousal maintenance or child support that the parent is ordered to pay from other support orders. Minnesota law allows a deduction from a parentís monthly gross income for a maximum of two non-joint children in their home.

Basic support is for the childís expenses, such as food, clothing and transportation, and does not include payments on arrears. It is calculated by multiplying the paying parentís percentage of the combined Parental Income for Determining Child Support (PICS) by the combined basic support amount. If a court orders parenting time to the paying parent of ten percent or more, he/she may receive a deduction from basic support, based on the percentage of court-ordered parenting time.

Medical support is providing for or contributing to health care coverage for a joint child. If the custodial parent is determined to owe medical support, the amount will be subtracted from the non-custodial parentís child support.

Child care support assists in paying for work or school related child care, and is based on each parentís share of their combined PICS.

A parent of a child is liable for the amount of public assistance furnished to and for the benefit of the child, including any assistance furnished for the caretaker of the child, which the parent has had the ability to pay.

      Legal Separation

      Legal separation in Minnesota is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship. A decree of legal separation shall be granted when the court finds that one or both parties need a legal separation.

      If one or both parties petition for a decree of legal separation and neither party contests the granting of the decree, nor petitions for a decree of dissolution, the court shall grant a decree of legal separation.

      Temporary maintenance and temporary support may be awarded in a proceeding brought for legal separation. The court may also award to either party to the proceeding, having due regard to all the circumstances and the party awarded the custody of the children, the right to the exclusive use of the household goods and furniture of the parties pending the proceeding and the right to the use of the homestead of the parties, exclusive or otherwise, pending the proceeding.

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