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.

Discovery is the process of requesting and providing information in a divorce. Of course, requesting information from the other party is relatively easy. Providing information to the other party is more complicated, because you are the one responding. You may feel like the requests for your personal information are invasive and unnecessary.

The general rule is that the court will allow any and all discovery that is arguably relevant. So when you are in the process of responding to discovery there are three categories, and one of them is not whether or not you want to provide the information.

The three categories are: (a) what is requested does not exist or apply; (b) what is requested does exist and you have it handy; and (c) what is requested does apply, but you do not have it handy.

If the request is made for you to provide all documentation pertaining to real estate that you own, and you do not own any real estate, then it is an example of Category A. If you do own real estate, then an example of Category B may be your most recent tax statement, your most recent mortgage statement and maybe even the settlement statement on your purchase of the residence. An example of Category C might be an appraisal of your house, or the Realtor’s recommendations for what needs to happen to prepare the house for sale.

The best way to begin tackling your responses to discovery is to follow up with your attorney (if you have one) or the other attorney (if you don’t have one), or the other party (if neither of you has an attorney) with a rundown of the three categories: (a) what is not applicable; (b) what is handy; and (c) what is going to require some time and effort to produce. The sooner you address this with your attorney, the other attorney or the other party (as the case may be), the better.

One requirement of petitions for marriage dissolution (divorce) in Minnesota, as well as divorce decrees, is to confirm on the record that the wife is not pregnant.

If the divorcing couple is two women, then the petition and/or divorce decree must, and can, confirm on the record that neither spouse is pregnant.

If the divorcing couple is two men, then it is not necessary to address the issue of pregnancy.

But what if one or both parties are transgender or non-binary? And isn’t it also legally relevant if one of the spouses (cisgender or otherwise) is an expectant parent?*

First, the question about transgender or non-binary spouses: addressing this issue as whether someone is pregnant or not pregnant unnecessarily boxes them into a cisgender or binary identity. The relevant issue is whether there is an unborn child of the marriage that is being dissolved.

As for the other issue, if someone is expecting a child, they may be pregnant with that child, or they may be the parent of that child. For purposes of the record in a divorce case, the relevant issues are (a) whether there is an unborn child of the marriage; and (b) whether there is an unborn child not of the marriage. If one party is pregnant, then the baby may be the other spouse’s child, or someone else’s child.

In the case of a husband and wife, where the wife is pregnant and the husband is not the father, that will be given attention in the divorce petition and the divorce decree. If the husband is an expectant father of a child not of the marriage, does that deserve less attention than a wife’s pregnancy?

In the end, it would make most sense for “expecting” to be a suitable term referring to anyone who is pregnant or who is an expectant parent. Further, it would make sense for a divorce petition and a divorce decree to confirm that (a) neither spouse is expecting; or (b) there is an unborn child of the marriage; or (c) that there is one spouse (or both) who is an expectant parent of a child not of the marriage.

*I would be inclined to use the word “expecting” for someone of either gender or any identity, but my internet search indicates that such usage is technically incorrect. Either the usage needs to be expanded, or there needs to be a proper term coined.

The subject of reconciliation is a topic to be addressed with counselors and therapists, not attorneys. Nevertheless, the subject does often come up when I am conferring with clients.

The law of divorce is akin to the natural law of the universe, which is that it requires only one spouse to declare under oath that the marriage is irretrievably broken. Not two. The way in which “real life” matches the law is that if one spouse is not “in” – or even if one spouse has “one foot in” and “one foot out” – that is a potentially irreversible crack in the constitution of the marriage.

That is not to say that all is lost. And my job as a divorce lawyer is not to cheer on the breakup. (It is to proceed forward from the point that the breakup has happened.) So if there is hope to save the marriage, those efforts should be made.

This is where the therapeutic expertise comes in. I cannot speak to how spouses reconcile. Marriage counselors would be better suited to speak in detail about how reconciliation works (and doesn’t work). This is what I can say, though, from my perspective as a divorce lawyer. If you take what romantic energy got a couple together in the first place, it takes twice as much – maybe four times as much – of that “mojo” to get the couple back together after a “crack” has occurred.

It is fair to say that I hear about more unsuccessful attempts at reconciliation than successful ones. But I get the impression that many unsuccessful attempts at reconciliation come from unrealistic expectations that patching things up should not be difficult. For reconciliation to work, not only do both spouses have to be “all in” with both feet; they both need to do so with a great deal of sincere and genuine effort.