How To Get A Divorce In Mn
Overview of Divorce Laws in Minnesota
In this guide, we're going to cover some of the most common legal questions and major issues that come up during a divorce in Minnesota.
Let's dive in…
- Equitable Distribution and Asset Division
- Spousal Maintenance and Child Support
- Child Custody and Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution and Asset Division
Marital Property in Minnesota
Minnesota is an equitable distribution state. This means that marital property must be divided in a fair and equitable way, but not necessarily 50/50, in a divorce.
Marital property is generally any real or personal property accrued during a marriage. Property acquired before or after a marriage is considered separate property and is not taken into account when a division of assets takes place.
The same holds true for property acquired as a gift or inheritance made by a third party to one spouse but not the other.
The underlying philosophy is that marriage is a full partnership, and that the contributions of a homemaker are equal in value to those of the bread-winner.
Learn More: Who Gets the House in a Divorce?
Debts
A court has a fair amount of latitude when it comes to debts in a divorce in Minnesota. Even if a debt was incurred during a marriage, if the court decides that the debt benefited one spouse but not the other, he has the authority to make that spouse solely responsible for the debt repayment.
Debts that are incurred after a marriage or separation, or before a marriage or separation only belong to the spouse who incurred them.
Division of Assets
Before a division of assets can take place, it must be determined which assets are marital property and which assets are separate property. Marital property is everything a couple acquired while they were married. Separate property is that which was acquired separately, usually before a marriage.
Minnesota is an equitable distribution state and that means a court must make a just and equitable division of marital property in a divorce. This means the division will be fair but not necessarily equal.
Judges look at several things in a division of assets. This includes the length of a marriage, the age and health of each spouse, sources of incomes, vocational skills and future employability, the contribution of a spouse as a homemaker and other related factors.
Asset division not only includes real property and personal property, it includes financial holdings as well. Bank accounts, stocks, IRAs and 401Ks are treated just like real property.
Gifts and Inherited Property
Gifts and inheritances given to one spouse or the other are considered separate property. Things are a bit more complicated when these assets are commingled with other assets in the marriage.
However, if a spouse can trace the nonmarital asset to a marital asset and show that the nonmarital asset was invested into the marriage, the court will make sure the spouse is reimbursed.
This is why it is important to document the receipt of a gift or inheritance, along with any notations that will help to clearly define the intent of ownership should the subject come up at a later date.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions, IRAs, 401Ks and retirement plans are probably the biggest assets that a married couple will have if they have been contributing to them consistently and for a long period of time.
These assets are treated just like other assets in a divorce. They are considered marital property, but only that portion of the retirement account that was accrued during the marriage.
This does not necessarily mean that all of these types of assets will be split 50-50 when it is time to divide assets. It may be possible for a couple to negotiate the retention of these types of accounts when their value is compared to the value of other assets in the marriage.
For example, if there is a lot of equity in a home, one spouse may trade off an interest in pensions or retirement funds in exchange for taking possession of the family home.
Legally splitting pensions starts with a divorce decree must order that these assets be divided. Armed with this, an attorney or a qualified firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
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The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Spousal Maintenance and Child Support
Spousal Maintenance in Minnesota
There are many factors that determine if, how much and how long one person will need to pay in spousal maintenance to the other in a divorce.
There are several key issues that are taken into consideration when determining spousal maintenance, including:
- The length of the marriage.
- The earning capacity of each spouse
- The needs and standard of living of each spouse
- Age and health of both spouses
- Existing debts and assets
- Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
- Did one spouse help the other with education, career training or other ways to assist them in advancing their career
Spousal maintenance awards can either be permanent or a judge can cap a time limit on how long a spouse may receive support.
Either spouse can also ask for a modification if there is a significant change in circumstances to warrant the change (i.e. job loss, health issue.)
Read:Everything You Need to Know About Alimony
Child Support
To determine child support in Minnesota, courts rely on the Minnesota Child Support Guidelines.
In general, the guidelines are based on the number of children being supported and the net monthly income of the parent required to pay support. Although the court may deviate above or below the guidelines, the amount of child support will usually be close to or at the specified guideline amount.
Minnesota has an online calculator that can be used to estimate the amount of child support a court might order. To use the calculator, the following information will be needed:
- Each parent's gross monthly income (from all sources)
- How many children live in each parent's home (do not count children who the parent has a court order to pay child support)
- Any other child support orders for either parent
- Any spousal maintenance orders for either parent
- The amount of benefits from Social Security or the U.S. Department of Veterans Affairs paid to a joint child due to a parent's disability or retirement
- The monthly cost for both medical and dental coverage
- The amount of child care costs
- The percentage, or amount of parenting time awarded in a court order
- If the parent is incarcerated, the ability to pay/minimum basic support calculation does not apply
Most of the time, child support is paid by automatic wage withholding. Child support is deducted by the employer and remitted to the Support and Collections office of the county where the proceeding is pending. The Support and Collections office then sends payments to the spouse entitled to the support.
In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place. When this happens, the other spouse can seek a court order compelling the parent to pay the required level of child support.
Once child support amounts have been set, they can be modified when there are changes in custody, one or the other parents' finances or changes in the needs of the children.
Child Custody and Visitation
Child Custody in Minnesota
The primary guiding principle in determining child custody in a Minnesota divorce is what is in a child's best interests. This will apply to both legal custody and physical custody.
Legal custody is the right to make decisions focused on raising the child such as education and health care.
Physical custody is the right to make decisions focused on the child's daily routine, including where the child lives.
Courts prefer parents to make decisions about child custody and visitation, but will step in if no agreement can be reached.
Courts will use many factors to determine custody issues including the age, health and emotional ties a child has to each parent. Cooperation among parents will also play a key role as well as how practical issues are to be dealt with, such as childcare, or the child's involvement in school and extra-curricular activities.
If you'd like a guarantee that your c0-parenting plan will be successful during and after your divorce, use Our Family Wizard! Their app puts all of the most important tools for co-parenting in one place, and is specifically designed for amicable communication between exes.
Substance abuse and domestic violence are other additional factors that will be critical in making a final decision.
Substance Abuse
Substance abuse can impact a divorce, specifically as it relates to child custody and visitation issues. Drug and alcohol abuse will have a negative impact on a parent's standing in a divorce because courts make decisions based on the best interests of any child involved in a divorce.
Substance abuse can also affect a division of assets when it is determined that one spouse or the other spent considerable marital resources on substance-induced behavior.
Divorce Process
Bifurcation of Martial Status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Bifurcation is allowed in Minnesota, but the courts can be reluctant to grant this status because it creates additional administrative oversight and court proceedings related to a divorce.
Disclosure Obligation
Both parties must disclose to each other the type and amount of all community and separate assets and debts. This is required so that an equitable division of assets can take place.
Each spouse will need to complete a series of forms, and each one is required to file an income and expense declaration as well.
When a spouse does not accurately disclose this information, it can be considered fraud and civil and criminal charges may be instituted. If they refuse to exchange information with their spouse, the court may order the spouse to do so, and also make them pay any associated attorney's fees.
Spouse's Default in Minnesota
In Minnesota, when one partner in a marriage files a petition for divorce, the other party must file a response with the court within 30 days unless the two parties reach an agreement. When no response is filed, it is considered either default or uncontested case.
When a response is not filed, that spouse is essentially giving up their right to have a say in any of the elements of the divorce. More than likely, in the absence of a response, what is in the petition papers is likely going to be what the court orders.
When the 30-day period expires, and if the responding spouse has not filed an answer, the petitioning spouse can ask the court to enter a default judgment
Other Divorce Issues
Domestic Violence
Domestic violence can be a particularly ugly part of a divorce proceeding, and as such, law enforcement officials have strong safeguards in place when the appearance of domestic violence is present.
If you are a victim of domestic abuse, the first thing you must do is take your children and leave the residence where you and the abuser are living. If you are in immediate danger, call the police.
You can seek a temporary restraining order which are granted on an emergency basis and take effect immediately. They are short in duration and are put in place until a hearing can take place to determine if a permanent restraining order should be granted.
Because Minnesota is a no fault divorce state, domestic violence does not need to be given as a reason for filing a divorce.
However, domestic violence will have a major impact on child custody and visitation issues. In fact, domestic violence is one of the factors a judge must consider when making custody decisions.
Parenting time may be required to be supervised or in some cases, parental rights may be terminated completely.
Health Insurance
When you get a divorce in Minnesota and you are covered under a spouse's healthcare plan, that coverage will end and you'll be forced to seek coverage elsewhere.
If you are the spouse who will be losing health insurance coverage, then you should disclose the cost of what a plan will be for you so that they may be figured into any spousal support ruling.
You may be able to continue health insurance through your ex-spouse's plan as part of COBRA for up to 36 months, but if this is the case, you will be required to pay the premiums that were formerly paid by the spouse and the employer. However, COBRA coverage is typically very expensive and other alternatives may be more suitable.
Infidelity and Adultery
Infidelity and adultery takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
Because Minnesota is a no-fault state, couples only need to cite "irreconcilable differences" as grounds for divorce. Evidence of infidelity or adultery has no bearing on whether or not a divorce will be granted by the courts.
However, adultery can have an impact on a division of assets in a divorce in Minnesota if it can be shown that the adulterous spouse spent community financial resources on his or her lover.
In general, adultery does not have an impact on child custody, unless it can be shown that the adulterous relationship has a severe negative impact on the children.
Military Divorces in Minnesota
Special laws that supersede state laws in many instances are in place for members of the military who go through a divorce in Minnesota. The Servicemembers Civil Relief Act eases legal and financial burdens of military personnel and their families who face the added challenges of active duty.
Among other legal protections, this grants the service member the right to postpone civil court hearings when military duties materially affect the ability of the service member to prepare for or be present for civil litigation.
In addition, you need to make sure that the court you choose has jurisdiction. You must file for divorce in a state where the military spouse is domiciled, where the military spouse is a resident, or where you and your spouse agree.
If you are stationed overseas or married to someone who is, you can still file in the United States. The proper place to file is the state where you are domiciled or meet the residency requirements. In Minnesota you must be a resident for at least 180 days prior to filing.
Child and spousal support awards may not exceed 60% of a servicemembers pay and allowances. The same guidelines and calculations that are used for non-military divorces are also used when a servicemember is involved.
Military medical insurance, known as TriCare, is available to military members and their dependents.
In a divorce, the 20/20/20 rule is used to determine whether a former spouse is eligible to continue receiving TriCare coverage. The parties must have been married for 20 or more years, and 20 years of the marriage must have overlapped 20 years of creditable service.
If the rule is satisfied, a former spouse is eligible to receive TriCare as long as the former spouse does not remarry and has no coverage under an employer-sponsored health plan.
Child custody can be a bit more complex in a military divorce because a service member's schedule may change every few months. Visitation language needs to be flexible enough to allow you to see your child for a specific amount of time each week or month, contingent upon your availability.
Read More:Laws Governing Military Divorces
Looking for more advice about divorce? Here are a few of our favorite resources:
- 101 Financial Pitfalls of Divorce
- What is a Certified Divorce Financial Analyst? (and why you need one)
- How to Protect and Rebuild Your Credit in a Divorce
- How to Value the House and Split Home Equity in a Divorce
How To Get A Divorce In Mn
Source: https://www.survivedivorce.com/divorce-laws-in-minnesota
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