If you are facing the possibility of divorce, we’re sure you have many questions. With few exceptions, the end of a marriage can be one of the most difficult and emotionally tumultuous times in your life. In general, there are three broad solutions to a couple facing divorce. You can try to fix things, through routes such as couples counseling and mediation. However, if you have tried that already, or believe it will not fix the solution, your legal options for ending a marriage involve petitioning the court for (1) a dissolution of marriage, or (2) a legal separation.
As many attorneys will tell you, every divorce is different. However, there are questions which many spouses have that generally have similar answers. Some of the most common questions we receive from clients are outlined below. If you want to speak to an attorney about your concerns, give us a call at: (952) 470-6361. We will guide you along your journey.
What should I do if I want to file for divorce? Filing for divorce is a multi-step process. You will need to create a petition for dissolution, which outlines the terms of your divorce and asks the court to grant those terms in a divorce decree. You may have to attend several court hearings and negotiate those terms with your spouse. Once the court finds the terms of your divorce acceptable, it will issue a judgment and decree of dissolution. This process can be both lengthy and complicated, so you should make sure that you speak with an attorney regarding your rights and responsibilities.
What should I do if my spouse has filed for divorce? If your spouse serves you with their summons and petition, Minnesota law grants you 30 days to file an answer with the court. You should make sure to speak with an attorney as soon as possible if your spouse has served you, in order to make sure that you have as much time as possible to make an informed decision.
What will happen to my kids? Part of a divorce decree is an order for custody and parenting time of all of your joint children. In Minnesota, courts decide custody and parenting time based on what it determines is in the childrens’ best interest. You and your spouse are free to negotiate a custody or parenting time arrangement which you believe will be in your childrens’ best interests, but if you cannot decide, the court will decide for you.
What is the difference between a dissolution and a legal separation? Procedurally, a dissolution of marriage and a legal separation are very similar. The parties negotiate custody and parenting time, the disposition of assets, and, depending on the parties, spousal maintenance. The primary difference is that, upon entry of a decree of legal separation, you and your spouse will remain married. Most couples who seek out a legal separation do so for religious or cultural reasons, or, less frequently, for financial or insurance reasons.
What will happen to my property? Minnesota law requires the court to divide all marital property in a way that is just and equitable. This does not necessarily mean that you and your spouse will each receive half of the marital assets.
Should I move out from our home? Many spouses separate and live in different houses prior to divorce. Moving out of your marital home does not mean you are giving up your house to your spouse – it will still be subject to property division. However, if there is a risk of violence between you and your spouse, you are not required to stay in your marital home.
Will I have to pay spousal maintenance? Courts determine spousal maintenance (also called alimony in some states) based on both the reasonable needs of each spouse, based on the status of living established during the marriage, and each spouse’s ability to support themselves. There is no set formula for determining whether a divorcing party will have to pay spousal maintenance.
My spouse and I are trying to divorce on friendly terms – why would I need a lawyer? Divorce can be an emotionally intense process. Often, parties enter into a divorce believing it will be easy, only to find that conflict inevitably arises. There are also many steps to the divorce process, which can overwhelm and confuse you. Even if you and your spouse agree on the terms of your divorce, speaking with a lawyer will educate you on the process, inform you of your rights, and instruct you on the short- and long-term consequences of your decisions.
I have a prenuptial agreement – how will that affect my divorce? Minnesota courts look to any existing prenuptial agreement between the parties at the time of divorce. So long as the agreement was entered into according to formal requirements, a court will generally uphold it. However, there are situations where a court will not uphold a prenuptial agreement. Prenuptial agreements tend to be complex – an attorney can review your agreement and tell you about what may happen at divorce.
I have never gone through a divorce before – what is going to happen in the coming days/weeks/months? Each divorce is unique. Some can occur relatively quickly, others can drag on for months or even years. Each contested divorce has many of the same major milestones however, which include: service of the summons and petition, an initial case management conference, custody evaluations and hearings, status conferences, mediation, and trial. Each one of these events tends to have several weeks or more between each one, and the behavior of the parties can influence this timeline as well. An attorney can instruct you on a general timeline after speaking with you about your particular circumstances.
My spouse had an affair – how does that affect things? Minnesota is a no-fault state. This means that the behavior of the parties has no bearing on whether a party can or cannot divorce. While always unfortunate, your spouse’s affair has little to no impact on your divorce.
How will my divorce affect my estate plans? In Minnesota, divorce automatically revokes all beneficiary designations of any governing instruments between spouses. Exceptions to this include agreements between spouses which specifically provide that those designations will survive divorce, designations pursuant to a divorce decree, and designations under plans under ERISA. An attorney can tell you more about whether your divorce will eliminate any beneficiary designations you have made to your spouse.
How much will my divorce cost? Predicting the costs of your divorce is very difficult. Divorce is a multifaceted process, and everything from the amount of property to be divided, to the presence or absence of children, to the parties’ willingness to cooperate and “play nice” can influence the overall cost of a divorce. You can reduce costs by trying to resolve disputes outside of court, and by staying focused on your end goals. By treating your divorce more like a business transaction and less like an emotional battle, you can save both time and money in the long run.