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).

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.