The Minnesota Divorce Process
THE MINNESOTA DIVORCE PROCESS
The divorce process in Minnesota can be long, stressful, expensive, and tiring. During the divorce process, numerous issues are likely to arise, such as custody, parenting time, spousal maintenance, child support, and property division. Minnesota family law has a well-developed set of caselaw that analyzes these issues, and provides guidance and direction to judges in determining relief in these matters. This is crucial, as most of these issues are left to the ultimate discretion of the judge. With each of these issues comes a set of statutes and deadlines which must be followed to ensure that the divorce process proceeds as smoothly as possible. It is important to retain the services of a Minnesota divorce attorney to ensure that the relevant procedures are followed, and that you get the outcome you are seeking. This article will provide an overview of the Minnesota divorce process, and will highlight the many issues that might arise along the way.
BEGINNING THE DIVORCE PROCESS
In Minnesota, the term “divorce” is actually referred to as “marriage dissolution.” Under Minnesota law, a marriage dissolution is the termination of the marital relationship between a married couple. Because Minnesota is considered a “no-fault” divorce state, a marriage dissolution will be granted if the court simply finds that there has been an irretrievable breakdown of the marriage relationship. Either spouse may file a dissolution of marriage petition in Minnesota if they have lived in Minnesota for at least 180 days immediately preceding the filing of the divorce petition. Additionally, the dissolution has to be filed in the county where either spouse resides, or, if neither spouse is a resident, the county where a party is domiciled (where the party is currently present and intends to remain for the foreseeable future).
Choosing Which Route to Take—Summary Dissolution, Joint Petition, or Summons and Petition
Summary Dissolution
There is a streamlined process for a summary dissolution that may be used if the parties meet all of the following factors:
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;
They have been married for less than eight years;
Neither party owns any real estate;
There are no unpaid debts greater than $8,000 incurred during the marriage, excluding encumbrances on automobiles;
The total fair market value of the marital assets is less than $25,000;
Neither party has nonmarital assets greater than $25,000; and
Neither party has been a victim of domestic abuse by the other.
If the parties meet the above factors, they may obtain a judgment and decree by filing a joint declaration which (1) specifies certain demographic data; (2) verifies that they meet the above factors; (3) lists each party’s nonmarital property; (4) sets forth how the marital assets and debts will be apportioned; (5) verifies both parties’ income and preserves their rights to spousal maintenance; and (6) certifies that there has been no domestic abuse of one party by the other. The parties must also view certain educational videotapes, and certify that they have watched them.
Joint Petition
If the parties agree on all of the issues in the divorce, they may file a joint dissolution petition. If the parties file a joint petition, no summons is required. However, a court hearing will still be required after the joint petition is filed if the marriage includes minor children and at least one party does not have an attorney.
Summons
The divorce summons is a notice document that identifies any real estate and contains restraining provisions and the notice of parent education requirements. The parent education program is a program implemented by the court designed to educate divorcing parents about the impact of divorce, the restructuring of families, methods for preventing parenting time conflicts, and dispute resolution options. Once the divorce summons is served, the parties may not:
Dispose of assets except for the necessities of life or for the necessary generation of income or preservation of assets, by written agreement, or for getting a lawyer;
Harass the other party; or
Discontinue or change insurance coverage or beneficiary designations.
Petition
The dissolution petition must allege certain information required by statute. Specifically, the petition must state and allege:
The name and addresses of the parties;
The place and date of the marriage;
That the parties have met the residency requirements for filing a divorce proceeding in Minnesota;
The names, social security number, age, and date of birth of each living minor child of the parties;
Whether or not a separate court proceeding for divorce, separation, or custody is pending;
That there has been an irretrievable breakdown of the marriage relationship;
Any temporary or permanent maintenance, child support, child custody, disposition of property, attorneys’ fees, costs, and disbursements applied for; and
Whether an order for protection (“OFP”) between the parties is in effect.
While you may include other information in the divorce petition, such as more detailed information regarding assets and debts, this is not required.
Financial Affidavit
If there are joint minor children involved in the divorce, the parties must serve and file (with their initial petition) a financial affidavit disclosing all sources of gross income. This is used for potential child support calculation.
Service and Filing of the Initial Petition
Both the Summons and Petition must be personally served upon the other party. Once the other party is served with the Summons and Petition, the dissolution case officially begins. As such, the case does not need to be filed right away if there are no issues that would require immediate court involvement. Oftentimes, the parties explore the possibility of filing a joint petition, or even may resolve their disputes in a mediation setting, before the case is ever filed.
Answer and Counterpetition
Once the original petition is served upon the other party, there are a series of deadlines that will arise. For instance, the Answer must be served within 30 days unless the Petitioner waives that time limit. The Answer should either admit or deny each allegation in the Petition. If the Respondent does not know whether a statement in the Petition is true or not, they should indicate in their Answer that they are without sufficient information or knowledge to admit the statement.
The Counterpetition is served by the Respondent, and must follow the requirements of a Petition. However, it may be served by mail, and there is no requirement that the Petitioner answer the Counterpetition.
The Initial Case Management Conference
You can think of the Initial Case Management Conference (“ICMC”) as the “first appearance,” which is used in most Minnesota metro-area counties (and an increasing number of rural counties). The ICMC is an early case management tool, and is typically scheduled within 3-6 weeks after a case is filed. At the ICMC, the parties (and their lawyers) meet with the assigned judge to discuss the case. While the judge does not make any decisions regarding disputed issues, agreements may be read into the record and adopted into the court order. The judge will identify the issues of the case, discuss the scheduling order, encourage alternative dispute resolution, and may advocate for the early neutral evaluation (ENE) program.
DISCOVERY
In order for both parties to learn all the facts of the case, they undergo the discovery process. While parties may choose to conduct discovery informally, formal discovery is increasingly common in divorce proceedings. If formal discovery requests are served, the opposing party has 30 days to respond or raise an objection. In divorce proceedings, the most common forms of discovery are interrogatories, requests for production (“RFPs”), and requests for admissions (“RFAs”). Interrogatories are written questions which require sworn answers. RFPs are documents which request that the other party produce documentation relating to an issue in the case. In divorce proceedings, RFPs are most commonly used to require the other party to produce financial documentation, and, if these documents are not readily available to the responding party, it is common to seek authorization permitting the requesting party to receive and pay for the production of the documents directly from the source. Lastly, RFAs are statements that the opposing party must either admit or deny. If the requests are not denied within 30 days, they are deemed to be admitted.
Oftentimes, the opposing party will not comply with your discovery requests. In these scenarios, motions to compel discovery may be brought. If you bring a motion to compel discovery, however, you must certify to the court that you have, in good faith, conferred or attempted to confer with the person failing to make the discovery available, in an effort to secure the information without court intervention. This is typically achieved by sending a “Rule 37 Letter” which details the remaining discovery deficiencies and warns the other party that you will bring a motion to compel discovery if they fail to comply by a certain date.
ALTERNATIVE DISPUTE RESOLUTION
As stated above, the judge or judicial officer will often want to see efforts made by the parties to settle the case short of proceeding to trial. There are numerous methods of alternative dispute resolution available to the parties.
Settlement Conferences
Settlement conferences are simply a meeting between the parties (and their attorneys). There are no neutral third parties present at settlement conferences. The goal of attending a settlement conference is to narrow the issues, determine how to exchange information and what forms of alternative dispute resolution may be appropriate. However, despite its name, it is extremely rare that cases actually get settled at a settlement conference, since there is no neutral third-party present.
Early Neutral Evaluation (“ENE”)
ENEs are a confidential technique designed to quickly resolve disputes and settle cases. ENEs move families through the court process in a quick, fair, and relatively inexpensive manner. They also greatly reduce court costs by limiting the number of expensive evaluations, while minimizing the hostilities between the parties. There are two types of ENEs. First, Social Early Neutral Evaluation is a short-term, evaluative process designed to promptly facilitate dispute resolution in custody and visitation matters, and offers the insight from private professional experts. Feedback is provided to the parties based on case presentations and information gathering. Second, Financial Early Neutral Evaluation is a process where the parties are provided with an early neutral evaluation of their financial issues so settlement may occur before significant time and money has been spent.
Mediation, Arbitration, or a Hybrid of Both
Mediation is a completely confidential process where a neutral third party facilitates communication between the parties, in an effort to reach a settlement agreement. However, a family law mediator may not impose his or her own judgment on the issues for that of the parties.
Arbitration is similar to a court proceeding, where a neutral third party renders a specific decision after presiding over an adversarial hearing at which each party presents their case. It may either be binding or non-binding, and is commonly used to divide personal property when the parties cannot reach an agreement.
A hybrid of mediation and arbitration is where the parties initially mediate their disputes, but if they do not come to an agreement, they arbitrate any deadlocked issues.
Moderated Settlement Conference
A Moderated Settlement Conference (“MSC”) is a form of evaluative mediation that usually occurs right before trial, and is used in cases where prior settlement efforts have failed. The third party neutral is typically an experienced family law attorney, and the MSC is usually held at the courthouse, so feedback may be received by the judge on contested issues, if everyone agrees, and so any agreements may be placed on the record.
Parenting Time Expeditor
The Parenting Time Expeditor (“PTE”) process is a mediation/arbitration process, and may be ordered by the court, despite the objection of the parties. The PTE will interpret and enforce existing court orders regarding parenting time and parenting-related issues. However, the PTE may not modify or change existing court orders.
Parenting Consultant
A Parenting Consultant (“PC”) is a neutral third-party whose role and authority is defined by the agreement of the parties. The court may not appoint a PC over the parties’ objection. The PC may render binding decisions that may be appealed directly to the judge. The PC will typically make decisions regarding parenting issues, and may issue a binding order on any issue other than custody modification, child support, or spousal maintenance.
OTHER DIVORCE ISSUES AND TRIAL
Every divorce is different, since every situation and family structure is unique. Apart from the divorce itself, there are a number of other issues that are likely to arise. These include child custody, child support, spousal maintenance, and property division. For more information regarding these topics, please visit RAM Law PLLC’s blog posts on (1) Child Custody; (2) Child Support Calculation; (3) Spousal Maintenance Calculation; and (4) Property Division Upon Divorce.
If the parties are unable to reach a settlement agreement regarding the above issues, the matter will likely proceed to trial. Before trial, however, the parties will attend a pre-trial hearing, where they will discuss settlement, define the issues for trial, and develop a trial schedule. Each party must complete a parenting/financial disclosure statement and serve it with the court at least 7 days before the pre-trial hearing. It is common for judges to require the parties to spend an entire morning or afternoon at the pre-trial hearing, so you should clear your schedule accordingly, and be prepared for a detailed discussion of settlement options and the narrow issues that will be brought up at trial. If the matter does not settle at the pre-trial hearing, the court will issue an order which will notify the parties of deadlines for completing discovery, for the submission of witness and exhibit lists, for the exchange of exhibits, for pretrial motions, and other deadlines. The order will also identify any issues that have been settled.
MINNESOTA DIVORCE ATTORNEYS
As you can see, the divorce process can be complicated—especially if the parties do not agree on all the issues. If you are going through a divorce, or are thinking about filing for divorce, it is paramount that you retain the services of a Minnesota divorce attorney to guide you every step of the way. An experienced divorce attorney can help you identify contested issues, reach settlement agreements, and prepare for trial. Contact the Minnesota divorce attorneys at RAM Law PLLC today.