Frequently Asked Questions
- What is the difference between a legal separation and a divorce?
A legal separation allows a spouse to file legal papers requesting child custody, child support, a division of debts and assets, as well as spousal maintenance, or what used to be known as alimony, while the bonds of marriage remain in place. Husband and wife remain married. While those with strong religious beliefs or those hoping to save the marriage may prefer a legal separation, it is rarely used.
A divorce, or dissolution of marriage, is identical to a legal separation but the bond of marriage is dissolved allowing the spouses to remarry. Legal separations often turn into a divorce so most people choose to forgo a legal separation.
- Are there specific reasons I have to prove why a divorce should be granted?
No. Minnesota is a no-fault state meaning no reason must be given or proven for a divorce to be granted. There are some states where fault must be alleged and proven, such as abuse or adultery, but not in Minnesota. A judge does not ask the parties why they are divorcing or if they think they can get back together. Does no-fault mean an increase in the number of divorces because a divorce is "easy" to obtain? While the parties do not need a reason to divorce, no one ever enters into a divorce lightly or on a whim.
- How are debts and assets divided in a divorce?
Minnesota law requires marital property, or debts and assets accumulated during the marriage, to be divided fairly and equitably. Whose name is on the debt and asset is unimportant – if it’s marital property it is divided fairly and equitably. What does fair and equitable mean? It means a division that makes sense. A judge takes into consideration factors such as why the debt was incurred, what the parties earn for an income and the value of the property each party is taking in the divorce. Fair and equitable is unique in every case.
Non-marital property is property either obtained before or during the marriage in certain circumstances. One should consult an attorney for more information of how marital and non-marital property may be treated in his or her particular case especially in today’s economic climate.
- What is spousal maintenance?
Spousal maintenance, what is formerly called alimony, is money one spouse pays to the other to keep the standard of living obtained during the marriage after the divorce. Spousal maintenance and child support are not the same. Child support is for the food, shelter and clothing of a child; spousal maintenance supports a former spouse who cannot earn enough to pay the bills or a former spouse who is going to get very little property in a divorce. Minnesota law requires a judge to weigh and compare multiple factors when determining if spousal maintenance is necessary including how much should be paid and for how long. One is best served talking to an attorney to delve further into this issue.
- How long does it take to get divorced and how much does it cost?
The more issues husband and wife can work out and resolve on their own the less time and money it takes to complete a divorce. Uncontested divorces usually take a few months to complete. Divorces where some or all of the issues are not resolved can take four to six months to resolve and if a trial is necessary then the parties can expect the trial to take place in approximately six to nine months, sometimes one year.
The filing fee for each party is $402.00. A motion, or request of the judge to make a temporary decision about custody, parenting time and the division of debts is $102.00. St. Louis County and other area counties suggest the parties use ENE, or Early Neutral Evaluation, in divorces where they meet with evaluators to help them resolve their legal issues. The hourly fee for the ENE is $180.00 - $250.00 depending on the parties’ gross monthly incomes. Each party must pay one-half of this hourly fee.
- Do I need an attorney?
This is often the first question asked when going through a divorce, child custody or child support case. People often times decide to hire an attorney because they do not understand how the court process works, they do not want to complete the numerous forms necessary to bring a court action or their former significant other has an attorney. It is very important to know your rights. There are times when a person meets with an attorney for a short consultation to learn about the divorce process works and the legal issues to keep in mind.
It is important for a person to work with an attorney who answers questions, offers real-world solutions and is open and honest with the client. Hiring an attorney based on that person’s reputation is only one factor to consider. One may want to talk with friends and family members for a recommendation. A consultation is sometimes used so the prospective client can get to know the attorney’s personality, opinion and perspective.
An attorney is strongly recommended when the other party has an attorney.
- What is mediation?
Mediation is a useful process where the husband and wife or ex-boyfriend and ex- girlfriend meet with a neutral third person to try to resolve their legal issues, such as the division of debts and assets and custody matters. Mediation is less expensive and less time consuming than a trial or a prolonged court case. The mediator helps the parties create an agreement rather than making a judge, who does not know the parties, decide where the children are going to live, who sees the children for holidays and how the debts and assets are going to be divided. Mediators, who do not have to be attorneys, charge an hourly rate that is split between the parties.
- My wife and I have sat down and worked out how to divide all of our assets and debts. We do not have children together. How do we start our divorce?
Often couples are able to divorce with little to no conflict. An uncontested divorce, or one where the husband and wife have worked out their issues on their own, can be completed much faster and at a fraction of the cost of a contested divorce. There are times when a couple attends mediation to resolve their legal issues. The husband or wife can retain an attorney to draft the necessary documents to complete the divorce or the forms can be obtained from Court Administration for a small fee.
- What is the Expedited Process?
The Expedited Process is a special court used to determine what parents must pay for child support, day care expenses and unreimbursed medical expenses for their children. Minnesota uses an income share model – child support is determined using the parent’s gross monthly incomes. A Magistrate, or child support judge, hears the case and issues his or her decision about these issues.
The Minnesota Department of Human Services provides a web based child support calculator at http://www.childsupport.dhs.state.mn.us/ .
- My ex-girlfriend and I just broke up. We have two children. She’s not letting me see our kids. What do I do?
Fathers who have a child outside of wedlock often know they are the true father of their children but in the legal world they have to have their legal rights established in order to be considered the father of the children. Fair or not mothers have all the legal rights to a child when that child is born outside of marriage. Minnesota law allows unmarried fathers to claim their legal rights by adjudication of paternity which is a short legal process where the unmarried father is declared to be "dad". A paternity test may be required to verify whether or not a specific man is the child’s biological father. Once the father is determined to be the biological father then the court process requires legal custody, physical custody and parenting time be established so he sees the child on a regular basis and has input in the educational decisions, medical decisions and other "big" decisions all parents make for their children.
- I lost my job and I am supposed to pay my wife $800.00 a month for child support which I cannot afford. What can I do?
Child support can be modified, or changed, under certain circumstances such as until a child turns 18 years-old and graduates high school, what ever happens last. Minnesota law allows child support to be modified if there is a significant change in circumstances in one or both of the parent’s income. An income increase or decrease, a job loss or a parent’s decision to attend college full time may be a significant change of circumstance. A person can either hire an attorney to try to modify child support or the forms to request a modification may be obtained at Court Administration.