Frequently Asked MN Divorce Law Questions
Q: What is the difference between legal separation and a divorce?
A: Pursuant to Minn. Stat. § 518.06, a dissolution of marriage, which is commonly known as a divorce, is the termination of the marital relationship between a husband and a wife. The court will issue a final judgment and decree when it is found that there has been an irretrievable breakdown of the marriage relationship. Then the final judgment and decree will completely terminate the marital status of both parties.
In Minnesota, the legal separation process is similar to a marriage dissolution in that it allows for a division of property, support awards, and custody determinations. However, the final judgment and decree does not terminate the marital relationship. Legal separations are not very common in the State of Minnesota.
Q: Does it matter who files for divorce first?
A: For the most part, no. It usually does not matter who files for divorce first. However, there can be some procedural advantages, such as the ability to choose the county in which your case will be venued and the timing of service and filing of the case.
Q: Can my spouse and I use one attorney for our divorce?
A: No. Even if you believe you have agreed on all issues, you and your spouse have conflicting interests. An attorney cannot ethically provide advice to both parties in a family law case.
Q: I want to file for divorce, but I am concerned that my spouse may become violent towards me and the children?
A: If your spouse has been violent toward you and/or your children in the recent past, you can petition the court for an Order for Protection (OFP) on behalf of yourself and the children. Upon receiving your Petition, the Court may immediately sign a temporary ex-parte (without one party present) OFP.
Your spouse or the Court may request a hearing, which will be held within two weeks. If an Order for Protection is granted after the hearing, a no contact order will be in effect for 1 to 2 years.
Our family law attorneys have extensive experience representing either party through this difficult process.
Q: What is the difference between “marital” and “non-marital” property?
A: Minnesota statute creates a presumption that all assets acquired during marriage, including real and personal property, are marital, regardless of whether the property is owned individually or jointly by the spouses [Minn. Stat. § 518.003, Subd. 3(b)].
Non-marital property is property that is acquired as a gift from a third party or inheritance to one spouse but not the other. Non-marital property can also be property that was acquired before the marriage.
However, there is a presumption that all property obtained by either spouse during the marriage is marital property. It may be difficult to determine whether a particular asset has any non-marital components. The person who claims the property to be non-marital has the burden to prove its non-marital character. This can be a difficult process, and it is always recommended to have an attorney assist with any non-martial tracing.