Is There Any Benefit to Filing for A Divorce Before Your Spouse Under Minnesota Law?
May 5, 2022
Since Minnesota is considered a no-fault state, it does not necessarily give anyone an advantage to file first in a divorce. However, when it comes to difficult or contested custody matters, that can be a situation in which it is important to be the first spouse to file for divorce. Otherwise, there really is not a benefit to filing first.
When Couples Are Deciding on How to Proceed with A Divorce in Minnesota, What Are the Options to Move Forward?
In divorce proceedings, there are many options with how to move forward. There is a full litigation option, which means that you are going to be working with the court and utilizing all kinds of resources to move forward. It is usually the most expensive way to proceed within the court system. Couples can also work with the early neutral system that the court establishes. This system is kind of a hybrid between litigation and mediation. You would be working with neutrals who have the ability to give input as to their thoughts on how the court may respond to different issues that are present in your case. There is also mediation. Mediation can be done with or without the attorneys. Most of the time, it is a decision you want to make with your attorney about which way to proceed.
When dealing with mediation, my approach is to prepare my client for mediation. The mediator will often set out the issues which will be discussed at each session. With my client, we gather the underlining facts. I, then, educate my client on the boundaries or parameters of what I think the court may do. That way, in mediation, they can make decisions knowing what the outcome may be in court. Informed decisions can then be made within that as to what is best for the family.
There is also a process called Collaborative. A collaborative process is implemented when the parties make the decision to work outside of the court system. It does not mean that the law is not followed but unique results can be tailored to each family. Collaborative process is a whole process that involves working with experts, such as financial experts and child experts, to find a solution that works for each of the parties and the entire family.
Once One-Party Files for A Divorce in Minnesota, What Is the Timeline or The Process up To the Point of Being Finalized?
The action of divorce starts with the summons and petition unless you are implementing the collaborative process. The summons and petition need to be received by the other party. The petition is the document that says, “Here’s what the general facts are in this matter, and here’s generally what it is that I am seeking.” Again, the other party needs to receive those papers. Once that happens, if you are in the court process, papers get filed with the court. The other party can either put in an answer or an answer and counter-petition. But, if they get an attorney right away, the attorneys work together in moving the matter forward. If it gets into court, we get scheduled for an initial case management conference. An initial case management conference is an opportunity for the parties to meet with the court to get a structure on how the matter is going to move forward. At that initial case management conference, if there are financial issues, the attorneys will often select a financial neutral with whom to work, and that is someone who is going to help you work through your division of assets, debts, child support, and spousal maintenance.
If there are child custody issues, such as parenting time, visitation, and custody, often two social neutral people are selected. We will meet with them and tell them what we think the issues are and how we see that they should be resolved. In turn, they will give us input as to what the court may do. If we cannot resolve things at the early neutral stage or through mediation, the court has us check in for a status conference. If we are not resolving things, we proceed with the status conference and the court will set a more structured mediation process or a pretrial. A pretrial is when we meet with the court to try to see if we can get any resolution, or outline what the issues may be for trial. During all that time, while we are getting to this point, we are exchanging information either formally or informally. The reason for this is to see if we can get to the point of putting together a Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. This is the document which sets out in detail all the terms of settlement. If we can, all the parties and the attorneys sign off on that and file it with the court. If we cannot resolve all the issues at that point, then we are scheduled for the pretrial and trial. Following the trial where all the evidence is presented to the Court the Court then issues it decision and we would get the Final Judgment and Decree.
As far as timing goes, it depends on how complicated the matters are and how much people are going to argue about things. I will tell clients that they can get through a divorce within two to three months. However, that is rare particularly if there are complex issues. Divorces with complex issues can take a year or more to resolve.
Is There Any Required Period of Separation in Minnesota Before Filing?
There is no required period of separation in Minnesota before filing for divorce. Minnesota is considered a no-fault state, which means that in the petition you allege that there is an irretrievable breakdown of the marriage relationship. You do need to reside in Minnesota for 180 days prior to bringing a divorce matter here.
How Is Custody Determined in Minnesota Once a Couple Is Divorcing or Parents Are Not Together?
Child custody is determined by the standard known as the best interests of the child. There are 12 factors that are considered when determining custody and the child’s best interest. A custody evaluator or the Court looks at who is meeting the child’s physical, emotional, cultural, and spiritual needs. They will investigate whether there are any special needs for the child. They want to assess who best can address mental health, medical health, and educational matters. They will also look at whether there has been domestic abuse and its effect upon the family or either party. When they get to the issue of disability of any kind, the court cannot use that disability unless it affects the person’s ability to parent. They will look at the history of the parent’s participation in the child’s life. They will look at the parents’ willingness to work together and share information, which can work as a negative if someone is unwilling to cooperate and share. That may affect how the court looks at the custody issues.
The court will look at the proposed arrangements for the child, and how that is going to affect the child. They look at the child’s attachment and wellbeing to their home, school, and community. If the children are older, they’ are going to look at their friends and schools and ask what kind of changes will occur because of divorce. They will look at each parent and the positives they bring to the child’s life. If there are any concerns, they will want to know how they can work around those kinds of things. They look at each parent’s capacity to develop the same relationship with the children and their significant other, other siblings, and extended family.
There are two kinds of custodies that the court considers, which are physical custody and legal custody. Physical custody looks at what the child’s physical daily routine is going to be while legal custody is held jointly between the parties. Both custodies address the major decisions in the child’s life, such as education, healthcare, and religious upbringing. And so, the court will ask whether the parties can decide those things together. If there is a dispute, the question becomes what ways do they have to resolve those disputes surrounding them? The impact on the children about those decision-making methods is also considered.
What Sort of Visitation Agreements Can Be Arranged or Awarded?
In Minnesota, we try to call it parenting time as opposed to visitation. Parenting time is going to depend on the parents. It is going to depend on the children, their needs, and age. In Minnesota, it is presumed that each parent should have at least 25% parenting time. Parenting time is defined as number of overnights that each parent would have with the child. The parenting guidelines have been established by psychologists, psychiatrists, child specialists, attorneys, and judges. The guidelines go age-by-age giving recommendations as to what might work for children. Of course, you will also need to consider your child’s unique characteristics.
Is There Ever an Age Where a Child Can Decide Who He or She Will Live With? Or, at Least Have Some Sort of Input?
The statute for deciding the issue of custody looks at what is the child’s preference, and whether they are mature enough to give that input to the court. Many times, when you are dealing with custody, you have children who are torn. They will say one thing to one parent and another to the other parent. Oftentimes, you deal with the child’s input after a custody determination has been made, when the kids are getting older, and when they have their own opinions about things. There are different ways of dealing with a child’s input. Each situation is different and must be evaluated as such.
Who Will Be Responsible for Child Support when Parents Are Divorcing in Minnesota? how Is that Amount Calculated?
The person who is responsible for child support in Minnesota is usually the parent who does not have full custody. The Court will use the Minnesota Child Support Guidelines which take into account both parents’ incomes, the child’s standard of living, and the percentage of time each parent spends with the child. With regard to the noncustodial parent, they will look at how many overnights that parent has, which is taken into consideration as part of their contribution and child support. Accordingly, that reduces the amount of child support that parent pays.
The amount of child support can get complicated when you are dealing with self-employed people, seasonal workers, and executives that have all kinds of different bonus structures. Depending on the circumstances, it can be a difficult issue, or it can be straightforward.
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