The family court will appoint a guardian ad litem to address the concerns of a minor child when there are issues before the court pertaining to a child’s well-being and best interests. Under the applicable statute, the family court’s appointment of a guardian ad litem is either MANDATORY or PERMISSIVE. Guardian ad litem appointments are mandatory when the court has reason to believe that a child is a victim of domestic child abuse or neglect. Such appointments are permissive when the family court judge or referee is desiring the assessment, report and recommendations of a guardian ad litem pertaining to a case.

In recent years, the guardian ad litem offices of the various courts in the Twin Cities metro area have been flooded with mandatory appointments and have, therefore, been largely unable to service permissive appointments. That is to say, even if a certain family court wishes to make a permissive appointment, the court will often have to opt against it because there are insufficient resources to provide services in permissive cases.

In 2015, a pre-existing law was amended to make it mandatory for family courts to issue a Certificate of Dissolution to be attached to the divorce decree in every case. A certified copy of the Certificate allows a party to certify their divorce, name change, etc. without needing to use the entire decree and without needing to unnecessarily disseminate or reveal the additional personal information in the decree.

The Certificate of Dissolution contains the case caption, file number, names of parties, prior names, name changes (if any) and the divorce date.

The Certificate of Dissolution must be issued by the court either from the court’s directive to a party or attorney to draft the certificate for the court’s review and approval, or from the court’s own preparation and issuance.

Once a divorce is final, there is no changing the allocation of assets and liabilities, and modifying child custody, parenting time, child support and spousal maintenance requires a substantial change in circumstances. The exception to this is what is called “reopening the decree.” Under statute, the grounds for reopening are limited, and would require compelling circumstances involving: mistake, inadvertence, surprise, neglect, new evidence, fraud, or other grounds that render the judgment void or moot.

When someone has committed to an agreement in mediation, they will almost never qualify for a reopening. When a mediated agreement is reached, the process is specifically designed to avoid mistakes, inadvertence, inattention to contrary evidence and fraud. Moreover, family courts are especially loath to “mess with” mediated agreements, even if one or both parties is/was not represented by counsel.

In most divorce cases, each party pays their own attorney’s fees, or both parties pay the fees out of joint funds. If one party is paying an attorney without the other party’s knowledge, but does not have access to sufficient funds, they may borrow funds from a friend or family member (or obtain a gift from that person). But as for the prospect of one party actually having to pay the other party’s fees out of their own pocket: this only happens in two ways, by statute. One is a “need-based” award of fees from the court. The other is a “conduct-based” award of fees.

A “need-based” award has three required findings that the court must make:

1. The fees were incurred in good faith.
2. The requesting spouse lacks the means to pay their fees.
3. The paying spouse has the means to pay the requesting spouse’s fees.

A “conduct-based” award only requires the court to rule that a party has engaged in misconduct that unnecessarily contributes to the length and expense of the proceedings.

In many cases, one party believes the other party is being unreasonable in negotiations, or even in refusing to negotiate. That situation may not be sufficient for the court to find misconduct. Everyone is entitled to their “day in court.” More typically, a “conduct-based” award of attorney’s fees will be based on a failure to disclose assets (or to do so in a timely manner), or to miss important court-ordered deadlines.

The basic goal in a divorce case is to get from “before” to “after.” “Before” is married, and “after” is divorced. Divorced means having a final plan in place for child custody, co-parenting arrangements, spousal maintenance, disposition of the marital homestead, allocation of debts and the handling of each party’s attorney’s fees, among other issues.

But what about the “during?” If it takes six months to a year to get from “before” to “after,” then a temporary order is likely to be necessary. A temporary order would have provisions such as the parenting schedule pending completion of the case, or how cash flow should be handled while the matter is pending? For instance, making the house payment until the house is sold. Or, paying an attorney’s retainer fee for purposes of having representation on the case.

The Order for Temporary Relief provides the temporary custody, temporary parenting time, temporary support, temporary attorney’s fees, and any other relief that needs to be in place in a pending divorce case, up until the final decree is entered. Most of the time, the parties agree to the terms of the Temporary Order, although they may need a mediator, child custody neutral or financial neutral to assist in arriving at terms. But if the parties are unable to reach agreement, the family court will hear the matter and issue an order.

The temporary provisions are not precedent for purposes of the final order. At least, not formally. It is intended that the final terms are based on long-term considerations, while temporary provisions are based on shorter-term considerations.

But the parties may agree to adopt the temporary terms as final terms. For instance, the party paying support may be willing to continue the same amount, but not a higher amount. Or a parent may agree to continue the temporary parenting schedule, but not an adjusted schedule that requires them to make a concession. In each of these instances, the other party may agree to adopt the temporary terms as a final agreement rather than engage in a contested dispute over final terms. In essence, the temporary terms may end up serving as a kind of informal precedent, for purposes of reaching an agreement to final terms.

If the family court makes the decision on final terms, the family court will (or at least, should) not use the temporary order as precedent. If the family court’s final order matches the temporary order, it would necessarily require that the family court assesses the facts and circumstances, and makes findings, to support the order. That is, the family court cannot just adopt the temporary order as a final order without such findings, unless the parties expressly agree to those terms.

If you have been served with divorce papers, you have thirty (30) days to respond. The same time period applies if the service happens by publication. That is, if the family court allows service to be published because of the inability to proceed with service in person, then the responding party has thirty (30) days to respond. (In the case of publication, the 30 days starts running on the date of the last of three publications.)

What is most important during that thirty-day period is to be in contact with the petitioning party or their attorney. Whether or not the responding party serves an answer within that period, or has an attorney make the first contact with the petitioning party, the petitioning party/attorney needs to know that the responding party is not needlessly delaying the process. Consequences for missing the 30-day deadline may include monetary sanctions, including the responding party reimbursing the petitioning party for fees and costs pertaining to needless delay.

If there is a stipulation to the terms of your divorce there is no need for a hearing if there are no minor children involved. Also, there is no need for a hearing if there are children involved but both parties are represented by counsel. In both of these situations, the court will do administrative review of the proposed decree and either (a) approve or (b) set the matter on for a hearing.

Conversely, if there are minor children involved, and one or both parties is not represented by counsel, it is the practice of the courts to have a hearing.

In either instance (administrative review or court hearing), the court will address problems or omissions in the proposed decree if something needs to be corrected in order to gain the court’s approval.

By statute, a divorce petition must be personally served. That is to say, someone must personally hand the documents to the responding party. It must be someone over the age of 18 who is not a party. So, it can be any adult that is not the petitioner. The person who does this deed (the “process server”) must then sign an affidavit (the “Affidavit of Service”) verifying that they have done so.

In the alternative to personal service, the responding party can acknowledge receiving the documents by signing an Admission of Service. Since the advent of email, this has become a common practice. The petition is PDF’d to the responding party, who is given the opportunity to sign an Admission of Service as a preferable alternative to being confronted by a process server, who may be someone they know or may be a complete stranger.

If the personal service happens outside the U.S., it is necessary (by statute) to have the process certified by a United States minister, charge d’affaires, commissioner, consul, commercial agent, or other consular or diplomatic officer.

The typical, traditional way to start a divorce is one party personally serving the other party with a divorce summons and petition. That is, one of the parties must be literally handed the documents. These days, it is at least as likely that the receiving party will simply sign an Admission of Service when the documents are emailed to them. For the responding party, that prevents the awkwardness of receiving personal delivery of legal documents at home or, worse yet, at one’s workplace; and for the petitioning party, it avoids the hassle and expense of carrying out the task of personal service.

A joint petition is different. Both parties sign a joint petition, which does away with the need for a summons, and also does away with the need for personal service of the documents. If both parties cooperate in commencing the case (which requires both parties to assert that there is an irretrievable breakdown of the marriage), then neither party needs to serve the other party.

Oftentimes, parties who proceed on a joint petition can also agree on the terms of the divorce, and incorporate the agreed terms into the joint petition. In that case, the entire divorce case is basically encapsulated in one document. This is most likely to happen if the marriage is of relatively short duration, and there are no children of the marriage and no complicated financial issues.

Essentially, a divorce petition asserts that the petitioner is married, is a Minnesota resident, that there is an irretrievable breakdown of the marriage, and that the petitioner would like for the court to dissolve the marriage.

More specifically, the applicable statute (Minn. Stat. Section 518.10) requires the following:

*Petitioner’s name and address and any prior names used, if any.

*Respondent’s name and (if known) address and (if known) any prior names used, if any.

*Date and place of the marriage.

*Petitioner’s (or Respondent’s) residence (or domiciliary status or armed service stationing) in Minnesota for at least 180 days.

*Names and dates of birth of the children of the marriage (i.e., children of the parties born or adopted during the marriage, or born before the marriage)

*Confirming whether or not any proceeding for dissolution, legal separation, or custody is pending in a court in Minnesota or elsewhere.

*The irretrievable breakdown of the marriage relationship.

*Claim for spousal maintenance, child support, child custody, property settlement and attorney’s fees.

*Whether a domestic abuse order for protection is in place that governs either party or a child of the parties.