Family Law FAQs

Do I have to go to court to obtain a Divorce?

A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity or other form of terminating a marriage in Minnesota. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal maintenance (alimony), child support, restraining orders, etc.

No court appearances are required to approve the dissolution if you are using the summary dissolution procedure (no children, property limit, no maintenance) or are proceeding by administrative review. Both of these procedures require written settlement agreements signed by both parties. If you have children, the agreement will also need to be signed by an attorney for each party.

How much will it cost to get divorced?

The biggest variable in the cost of dissolution is the amount of attorney time that you use, cases that settle early on with little attorney time cost substantially less than cases that go to trial after many court appearances.

Does it make a difference whether I start the divorce or wait for my spouse to start it?

Yes. If you start the divorce, you control the point in time when the court has the power to make binding orders over the two of you. This may be important if you need a temporary order.

If my spouse makes more money than I do, does he/she have to pay me any money?

In some cases, the answer is yes. When one spouse is required to contribute to the other spouse’s income, the court makes an award of spousal maintenance. Maintenance is awarded when one spouse cannot meet his/her own needs and the other has the ability to pay. The amount and period of time is based on factors such as the length of the marriage, the standard of living during the marriage, the reason why the requesting spouse cannot be self-supporting.

Do I get to keep the house and pension since they are in my name only?

If you acquired those assets during the marriage, they are considered marital property that is subject to a just and equitable division. In the vast majority of cases, the court divides the value of marital property 50/50.

There is one exception to the rule that assets acquired during the marriage are marital property. Assets that meet the definition of nonmarital property would most likely be returned to you. Some examples on nonmarital property are assets owned by you prior to the marriage, assets acquired using an inheritance that was made to you and you alone, gifts made to you and you alone, and proceeds from lawsuits representing permanent personal injury to you. These are just a few examples. In very exceptional cases, the court can award up to 50 per cent of your nonmarital property to your spouse.

What do we do about the debts?

The debts get divided along with the property in a just and equitable manner. Unlike the prevailing trend to divide marital property 50/50, there are more variations on how debts are split.

Can I object to the terms my spouse has requested in the divorce?

Yes, you (along with your attorney) can reject the terms of your spouse’s offer. On receiving an objection to the establishment of a family law attorney’s settlement, the Minnesota divorce court may at its own discretion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody or support. If the Minnesota divorce court finds that the case involves one or more of these complex or substantial issues, the court may implement a case management plan.

Is a father who never married the mother still required to pay child support? What if the father is not allowed to see the child?

Regardless of marital status, an ‘assumed father’ is any biological father of a child for whom paternity has been established by either the admission of the father or paternal testing. Assumed fathers are required to pay child support. Additionally, a man who never marries a child’s mother, but welcomes the child into his home and supports the child as his own may gain a ‘presumed’ father status, and typically, the presumption of paternity holds the same rights and responsibilities of an assumed father, in regard to parental liability and monetary support.

Every parent has a financial obligation to support their children and child support should never be confused with custodial or visitation rights. There is no state which permits a parent to withhold child support because of disputes over custody or visitation. If a non-custodial parent believes their rightful child visitations are being disrupted, it is recommended to contact an attorney to file a claim against the custodial parent in a court of law, rather than stop making child support payments as a form of retaliation. However; in the event of parental kidnapping, in which the custodial parent completely disappears with the child, any wage garnishments or income attachments as made for child support on behalf of the non-custodial parent would cease. For more information about complicated child custody and visitations issues in Minnesota, contact our office.

Is paternity testing necessary if I really believe I’m the father?

No, however; once you have agreed that you are the father in a legally binding way, it is difficult to change. Common ways of agreeing that you are the father are signing a Recognition of Parentage (which is sometimes referred to as a ROPE and is usually singed at the hospital) or admitting that you are the father in a court preceeding that results in a formal order on paternity. A ROPE or an adjudication of paternity gives you the right to seek custody or visitation with the child; it also makes you financially responsible for the child.

What happens to a father who refused to pay court ordered child support?

Under the Child Support Enforcement Act of 1984, it is against the law for any father, presumed or assumed, to not pay court ordered child support to the custodial guardian regardless of joint custody. Federal laws permit the interception of tax refunds to enforce child support orders, and other methods of enforcement include wage attachments, seizure of property, suspension of a business license and possible driver’s license revocation. In the event that none of these attempts are entirely successful, the court of law that issued the child support order can hold the father in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term.