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).

Divorcing parties with children are required by Minnesota statute to participate in parenting education. The education requirement dates back to the late 1990’s, when the legislature called for the judicial districts to develop and implement programs to educate parents about (a) the impact that divorce, the restructuring of families, and judicial proceedings have upon children and families; (b) methods for preventing parenting time conflicts; and (c) dispute resolution options.

In some cases in which the parents present an amicable dynamic to the court by agreeing to custody and parenting time provisions, the court will waive the education requirement. In other cases, in which the parents are engaged in a high level of conflict that negatively impacts the child(ren), the parenting education is of vital importance.]

Whether or not you believe that you are in need of parenting education, and whether or not the dynamic in your case is amicable or high-conflict, parenting education is helpful. One program that is highly recommended is called Bridging Parental Conflict. The Bridging Parental Conflict® class is a one-time 6-hour online educational experience developed for parents who experience conflict with their co-parent, or for parents who are just beginning the transition to a co-parenting relationship. More information is available, as well as a registration link, at bridgingparentalconflict.com. (Participants are directed not to attend the program at the same time as their co-parent.)

When a divorce proceeding begins, both of the parties are subject to restraining provisions to avoid bad-faith financial tactics. Neither party may dispose of assets except for the necessities of life, the necessary generation of income or preservation of assets, by an agreement in writing, or for retaining counsel to carry on or to contest the divorce proceeding. That is to say, that the parties should be doing nothing unusual unless (a) both parties agree in writing; or (b) one of the parties is utilizing marital funds to obtain or maintain legal representation in the divorce.

This rule takes effect as soon as the petitioning party serves process on the responding party, or the responding party acknowledges service of the petition. And the rule applies to the petitioning party at the same time as it applies to the responding party.

If the parties are jointly seeking the divorce (i.e., with a Joint Petition for Marriage Dissolution), then the rule applies to both parties once the Joint Petition is filed with the court.

To obtain a marriage dissolution in Minnesota, one or both spouses must reside in Minnesota for at least 180 days. If the residency requirement cannot be met, a legal separation may be done without 180 days residence.

Venue refers to the county where the proceeding takes place. As long as the 180-day residency requirement is met, it does not matter how long one or both spouses has/have resided in a certain county to proceed with the action in that county. So if the parties reside together, or reside in the same county, then the home county is the proper venue for the case.

If the parties reside in separate counties, then the case may proceed in either county. So the petitioning party may commence the action in their own home county, or in the other party’s home county. Once the action is commenced in one county, it is very unlikely to be transferred to a different county. That said, if the case is filed in one county by mistake (i.e., neither party resides in that county), then there is no proper basis for proceeding in the first county, and both courts (the one where the case was mistakenly filed, and the one where the case is properly filed) are likely to cooperate with the correction.

However, if the case is commenced in one county, either by mistake or intentionally, and there is a proper basis for the case to proceed in that county, and then there is an effort to move the case to a different county, the courts are not likely to accommodate the change, especially if one of the parties objects.

In Minnesota, the family court will grant a divorce if one party asserts under penalty or perjury that there has been an irretrievable breakdown of the marriage. It does not require this assertion from both parties. If the other party does not believe that the marriage is irretrievably broken, it does not impact the court’s ability to dissolve the marriage.

When this law was adopted, many years ago, it abolished other grounds for divorce as well as abolishing defenses to divorce.

The divorce action should not be used as an ultimatum imposed on the other spouse. As mentioned, the assertion that the marriage is irretrievably broken must be stated under penalty or perjury. So if one spouse petitions for divorce, not because of an irretrievable breakdown of the marriage, but as a means to make the other spouse seek reconciliation, it is not a proper use of the process.

Conversely, If the petitioning party does decide to pursue reconciliation, the petitioning party can withdraw the divorce petition, or place the divorce action on inactive status while the couple pursues reconciliation.

Since I practice divorce and family law, I often receive calls and contacts from people who are in the midst of a breakup with their partner to whom they are not married. In some instances, the fact that they are not married is fortunate, and in some instances, it is unfortunate.

The law defines marital property as real property, personal property and pension benefits acquired by one or both spouses during their marriage. Everything that either or both spouses owns is presumed marital regardless of how title is held. One or both spouses may have non-marital claims that they can establish by overcoming the marital presumption, which is a subject for another article.

The point of this article is that if you are not married, then there is no benefit (or burden) of the designation of marital property. It matters how title is held. And it matters which party paid for property items.

If a home appreciates in value while a couple is married, both spouses are entitled to a fair share of the value of the appreciation. If a home appreciates in value while an unmarried couple co-resides in the home, only the titled owner is entitled to the value of the home (including the appreciation in value during the co-residence).

If a married couple breaks up, it is usually the case that each party is entitled to a car. But if an unmarried couple breaks up, then it depends on who paid for each car.

The reference above to it being fortunate or unfortunate that the parties are not married correlates, of course, to whether the difference in the parties’ respective claims due to not being married is advantageous or disadvantageous. Typically if there is one party that is financially dependent on the other, then being unmarried is disadvantageous to the financially dependent party, and advantageous to the other.

Moreover, if there is the need to address a dispute in court between two unmarried individuals who are breaking up, that dispute will not be addressed in family court, but will belong in civil court. If the amount in dispute is less than $15,000, the matter can be addressed in conciliation court. Otherwise, it is handled as a civil dispute in district court.

By statutory definition, “physical custody” means the routine daily care and control and the residence of the child. In practice, the physical custody label is not as important as it seems. “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between the parties. In some sense, the routine daily care and control and the residence of the child is structured between the parties whether one or both parties have physical custody.

Moreover, the distinguishing factors of having “sole” physical custody have been largely extinguished over the years. Under previous law, the parent with sole physical custody could change the child’s state of residence unless the noncustodial parent prevailed in court to prevent the move. Under the previous version of the law, the noncustodial parent had the burden of proof, and the court would allow the move unless there was a compelling reason not to allow the move. Under current law, it is the reverse. A parent, even a parent with sole physical custody, must have the consent of the other parent (or the court’s permission) to change the child’s state of residence. The moving parent has the burden of proof in court and the court will not allow the move unless there a compelling basis to allow the move.

Under Minnesota law, there are two ways a parent can have custody of their child(ren): legal custody and physical custody.

Legal custody does not pertain to where the children live or how the children’s time is allocated between each parent’s home. Legal custody pertains to the sole or joint authority to make decisions for a child regarding academic, religious and medical decisions.

It is presumed that two parents will share legal custody (“joint legal custody”) and usually one parent will have “sole legal custody” only if both parents agree to this, or if there is an express reason why one parent should not have joint legal custody.

Many separated and divorced couples who have a high level of conflict will not fare well sharing joint legal custody. But in many cases, high conflict does not necessarily correlate with joint legal custody being problematic. Sometimes there are parents who argue about finances or parenting schedules or any number of issues, but they do not have disagreements about academic, religious and medical decisions. Attending the neighborhood public school may be a no-brainer. One parent may not have strong feelings about the child’s religious upbringing, which allows the other parent to proceed uncontroversially with the child’s involvement in religious activities. And parents who otherwise bicker may not have disputes about medical care because they both trust the child’s pediatrician.

In Minnesota, child support is on a mathematical grid that factors in each parent’s income and the parenting schedule. That mathematical grid actually results in a statutory calculation of child support in the amount of zero when (a) parenting time is equal; and (b) the parents’ income are equal. Minn. Stat. § 518A.36, subd. 3.

What if parenting time is equal, and the parents’ incomes are almost equal? The more disparate the incomes, the higher the child support. The closer the incomes, the closer to zero.

It is worth bearing in mind that this pertains only to basic child support. There still may be the need to settle up on the parents’ respective contributions to health insurance. So in many cases in which the parents’ incomes are almost equal – but not equal – and the higher earning parent is also covering the children’s health insurance, it can be agreed upon as a wash.

That is, the lower-income parent owes some medical support to the other parent, but the higher-income parent owes some basic support to the other parent. The two figures will offset each other, and it may result in a small enough difference to just agree on canceling out each parent’s respective obligation.