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.

One of the ground rules when a divorce is pending is not to change insurance status. This applies to the responding party, as well as the petitioning party.

Before the divorce, both spouses may have health insurance through one spouse’s employment. There may be life insurance in which the surviving spouse is named the beneficiary. Both of these situations may well change after the divorce is final: one spouse may have to obtain health insurance from a different source because insurance is no longer available through their (now) former spouse. And the parties may have different plans for naming a death beneficiary for their respective life insurance policies.

So the rule that restrains either party from making changes during the divorce prevents someone from being uninsured out of spite while the breakup is occurring in real time. If the insurance status is frozen, then whatever the beneficiary status was before the divorce remains in place during the divorce. (The exception to this rule is a situation in which both parties confirm in writing an agreement to make a change.)

After the divorce, the rule expires and the insurance status is not required to remain frozen. However, the divorce decree may impose new requirements in accord with the terms of the divorce. For instance, one party may be required to leave the other party named as the beneficiary of life insurance, to secure the payment of spousal maintenance

When a divorce proceeding has begun, both parties are subject to certain ground rules. The petitioning party who has initiated the process is imposing restrictions on the responding party, but also self-imposing those restrictions since they apply to both parties. Neither party may dispose of assets except (a) for the necessities of life or for the necessary generation of income or preservation of assets; (b) by an agreement in writing; or (c) for retaining counsel to carry on or to contest the proceeding. Basically, it is either typical life, lawyering up, or with the other party’s written consent.

The purpose of the restrictions is to deter parties from engaging in bad-faith or retaliatory conduct, and brings order and fairness into the case proceedings. But the restrictions do not interfere with the parties’ everyday financial needs so that the parties can conduct their normal activities.

A petition for a marriage dissolution is not a terribly complicated document. Basically, one states that they are a resident of Minnesota for at least 180 days who is married, and there is an irretrievable breakdown of the marriage. As a result, the petitioner requests the court to dissolve the marriage and address other applicable issues. The other issues may involve child custody and co-parenting, spousal maintenance and/or child support, real estate and other assets, liabilities and other financial issues, and the changing of names. But all in all, it is a rather straightforward document.

The statutory requirements of the petition are:

1. Petitioning party’s name, address and prior names;
2. Other party’s name, address (if known) and prior names (to the petitioner’s knowledge);
3. When and where the parties were married;
4. Assertion of Minnesota residency, armed services stationing or domiciliary status;
5. Names and dates of birth of children born or adopted during the marriage (and expected date of birth of a conceived but as yet unborn child);
6. Identifying any other proceeding elsewhere for dissolution, legal separation or child custody involving the parties;
7. Statement of the irretrievable breakdown of the marriage;
8. General claim of maintenance, support, custody, property and attorney’s fees, if applicable; and
9. Whether a restraining order is in place involving the parties or their minor child(ren).