The first thing to do is to prepare the “petition for divorce.” In the petition, you will set forth your preferences on how assets should be shared, about child support, the amount of time each party will spend with the children, and many more issues.
The initial paragraphs will address information about the parties, such as your names and birth dates, whether you are still living together or have separated (and if so, when), where and when the marriage took place, and how long each of you has lived in the state (one of you must have been living in Minnesota for at least 180 days.)
The petition will also include information about any children:
- Names
- Birth dates and ages
- Who they are living with
- Who they should live with after the divorce
- Who will pay child support, and how much it is expected to be
The petition will also contain paragraphs addressing the division of any property. Typically, there will be paragraphs stating:
- Who should get the marital home, or will it be sold
- Who should get each car or other vehicle
- Who will get specific items of personal property
- What your financial assets are: bank accounts, investments, retirement savings, pension plans, etc. Each of these will get a separate paragraph and will state who you believe should be awarded each asset
- What your debts are: credit cards, loans, mortgages, etc.
Once the Petition is Prepared, What Happens Next?
The next thing you must do is serve the petition on your spouse. “Serve” is a technical legal term in this case. It means that a person unconnected to the parties (usually the county sheriff or a private service agency) will find your spouse and place a copy of the petition directly in their hands.
Sometimes your spouse will refuse to accept the petition, will duck service by hiding, or it is simply not possible to find them. It is still possible to complete the service. Divorce from a missing spouse can indeed be done. This involves posting a notice in a court-approved local or legal newspaper. The notice informs the other party that a divorce petition has been filed and that a response is expected.
If your spouse does not file an answer to the petition, a default judgment will be ordered, meaning you will be awarded everything you asked for in the petition.
What Does Your Spouse Do?
The next step is that your spouse must prepare, file, and serve a response or “answer.”. It will match the petition paragraph by paragraph, stating whether they agree or disagree with your positions.
The answer can set out the terms of an amicable divorce (i.e., the parties agree to certain terms), or the answer can be contentious and request mediation or court intervention to divide marital assets or make child custody determinations.
What Happens if There are Children Involved?
Courts spend a significant amount of time trying to determine what is in the children’s best interest. Generally, stability is given significant weight in determining which parent will receive primary custody.
A court will look at the following:
- The location of the child’s friends, family, school, etc.,
- The financial resources of each parent (including their ability to make more money),
- Where the child’s siblings are located, and
- The desires of the child (assuming they are of an age to make such a determination).
If the parties cannot agree on custody, the judge will decide. The standard the judge will use is: What will be in the child’s best interest? This is the standard the judge must consider when finalizing child custody or visitation agreements, and it will take precedence over most state child custody laws.
Normally both parents are awarded “legal” custody. Legal custody is the right to make important decisions regarding the child’s life after the parents’ divorce. Legal custody is about making decisions for your child regarding their education, health care, religious upbringing, extracurricular activities, and psychological treatment.
The other kind of custody is “physical “ custody. Physical custody is very much how it sounds. This term refers to where the child will live or spend most of their time. To determine which parent will have physical custody, the judge will consider a variety of factors, such as:
- Each party’s ability to care for the child(ren)
- The relationship that each parent has with the child(ren)
- Which home would be better suited for the child’s adjustment or needs.
Child Support
When a couple divorces and there are children, how is the amount of child support determined? Which parent will have to pay it? The law requires both parents to pay part of the cost of raising the child, and it assumes that each parent can or should work and earn an income.
Determination of the amount of child support and who will pay whom incorporate several factors, including:
- Each parent’s gross monthly income from all sources
- How many children each parent has
- The monthly cost of medical and dental coverage
- The amount of childcare costs
- Any child support orders already in place for either parent
- Any spousal maintenance orders for either parent
- The amount of any benefits the child(ren) receives from Social Security or the U.S. Department of Veterans Affairs
- because of a parent’s disability or retirement
- The amount of parenting time each parent will get with the child(ren). Typically, the parent who has the child for
- the greatest number of days/hours will receive child support, and the other will pay it
Minnesota has a website that asks for the children’s situation, visitation times, the parties’ incomes, and more. This formula will create the statutorily assumed amount of child support. However, the court is free to award any amount they think is necessary, so while there are guidelines in state law, the judge can ignore them.
Are There Any Alternatives to Traditional Divorce?
Different legal proceedings may be more appropriate depending on the reason for divorce.
Sometimes, a legal separation may be a better option than divorce. “Legal separation” involves the creation of a court-approved binding agreement between the parties. The agreement sets out the guidelines you must follow while living apart (notably, it is not necessary to live apart – you can have a legal separation even if you still live together).
The legal separation agreement includes items such as how you will manage your affairs and assets and each party’s obligations and rights regarding children. The considerations taken into account in a legal separation are precisely those which are considered in a divorce.
Amicable Divorce
Another option is called “amicable divorce.” Amicable divorce refers to a certain approach rather than a classification of divorce proceedings. With an amicable divorce, the parties work cooperatively to resolve whatever issues or concerns they may have regarding the divorce. This contrasts with more traditional, adversarial divorce, which is conflict-based.
In standard divorce cases, the parties might not be willing to cooperate fully with one another. As a result, the parties may need to cross-examine and examine evidence to resolve conflicts. However, with an amicable divorce, the parties use other methods to resolve disputes.
These can include:
- Mediation
- Collaborative divorce processes
- Negotiations
- Stipulations
- Out-of-court counseling
The two most common ways of amicably handling a divorce are mediation and collaborative divorce.
Mediation is a process that allows divorcing couples to meet with a specially trained, neutral third party to discuss and resolve common divorce-related issues. Because you and your spouse have the final say over your divorce matters, mediation allows couples to maintain power and control in their divorce instead of asking a judge to decide.
Collaborative divorce refers to the process of removing disputes from the combative setting of a courtroom into a trouble-shooting process of negotiations. The defining characteristic of collaborative divorce is that the parties hire their own specialized collaborative attorneys, and everyone agrees not to litigate. If one of the parties goes back on that agreement not to litigate, both parties have to find new lawyers.
An amicable divorce is ideal for situations where the parties can cooperate. It is not recommended or practical for cases where the parties are unwilling to work together. Also, if one spouse has endangered the other spouse’s safety, the judge may not allow an amicable divorce. There may be a restraining order in place, or there may be certain safety issues at stake. This is often the case in situations involving domestic abuse or violence.
What Other Steps Are Taken in a Divorce?
You may file one or more motions with the court. Motions are how parties communicate with the court system and ask the judge to do something. Once a court has decided on the issue, the judge will issue a court order directing the parties on what to do or refrain from doing certain things. An example of a divorce motion would be filing to ask the court to order your spouse to pay child support while the divorce proceedings are pending.
Finally, the court will issue a divorce decree. This is the court’s final order dissolving the marriage. It consists of the judge’s statement of the facts, the judge’s conclusions of law (application of the law to the facts), and the judge’s order that a judgment is entered. Together, these provide evidence that a marriage has been legally ended. These documents are filed with the county court clerk as a permanent record.
Should I Hire a Lawyer for Help with Divorce Filings?
It can sometimes be difficult to tell all your options regarding divorce or legal separation. You may need to hire a qualified Minnesota divorce lawyer for advice or representation regarding any legal issue. An attorney can advise you on how to proceed and inform you of the possible outcomes and consequences of each option. If you need to appear in court or attend any meetings, your lawyer can be there to represent you.
If your spouse’s attorney has already served you with divorce paperwork, you should consult an attorney as soon as possible. Once your spouse has lawyered up, you must hire an experienced attorney. They can explain your rights and responsibilities, use specialized knowledge to advocate on your behalf and obtain the best possible result for you and your family.
