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Divorce

Minnesota is a “no fault” state, meaning in order to be granted a divorce, an individual no longer needs to convince a judge that your spouse is an adulterer, or an alcoholic, or has abused you, or has abandoned the marriage. Courts now require that one party simply needs to explain an “irretrievable breakdown” and general reasons why you can’t stand to remain married any longer.

With this in mind, Minnesota divorce is no longer a legal fight about whether you or your spouse will be granted a divorce. No, it’s about much more important matters.

Instead, it’s about:

Your Children: Who will they live with? How much time will they spend with you? With your spouse? Who will make decisions about their medical care, their schooling, their activities? How does child support work? Who sets the monthly amount? How is that amount identified? How is it collected? Who pays for children’s medical insurance? Uninsured medical expenses? Daycare? Private school? Can a parent relocate, out of state, with the children?

Your Assets and Debts: Who will stay in the home, who will leave? Or will it need to be sold? How will all of your accounts—checking, saving, investment, retirement—be divided? Do you get to keep your premarital assets? What you inherited? Gifts? If you get half of the estate, how is “half” figured out? How much is half? What assets, what debts, make up your half? Does she get to keep all of her own retirement assets? If not, can they be divided without causing early withdrawal penalties? If you get the house, will you have to refinance the mortgage into your own name?

Closely Held Businesses: How are farm or business assets divided? How are businesses valued? How can a spouse be bought out when the business has cash flow limitations?

Your Standard of Living: What will your monthly budget look like after the divorce? Can you afford it and, if so, how? Is there still such a thing as “alimony”? If so, how is the amount figured out? How long does it last?

Taxes: Who gets to claim the kids as dependent exemptions? Who claims “Head of Household” status? In the year of divorce, do you file as “married” or “single”? Who will receive the mortgage interest deduction this year? Do we need to be concerned about capital gains?

Names: Can you use your maiden name again after the divorce? Should you? Can this be handled as part of the divorce?

Domestic Violence: If your spouse is physically, verbally, and emotionally abusive, what protection can a court give you? How can it protect your children?

Our attorneys help people with these issues and questions every day. We are experienced, vigorous—even fierce—advocates in the courtroom. However, we believe that family disputes are best resolved by the families themselves, not in courtrooms by judges. That’s why we are strong negotiators who are dedicated to exhausting every effort to find a fair settlement before bringing our clients to trial.

Whether your focus is on children, on financial matters, or perhaps on personal safety, Gjesdahl Law’s attorneys possess the experience you’ll need. If you are facing divorce issues, give us a call or send us an email, and let us help.

Common Questions About Minnesota Divorce Laws

Generally, how do Minnesota divorce courts divide the parties’ assets and debts?

As a general matter, each spouse will be allowed to keep 100% of his or her “non-marital assets.”  The value of the “marital” estate — which consists of: marital assets minus marital debts — is usually divided equally.

In cases of undue hardship, a court can award one party some of the other party’s non-marital assets or can divide the marital estate unequally.

Which assets are considered “non-marital” in Minnesota?

“Nonmarital property” means property, real or personal, acquired by either spouse before, during, or after the existence of their marriage, which:

  1. Is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse
  2. Is acquired before the marriage
  3. Is acquired in exchange for or is the increase in value of property which is described in clauses (1), (2), (4), and (5)
  4. Is acquired by a spouse after the valuation date
  5. Is excluded by a valid antenuptial contract

Additional Minnesota Divorce Questions & Answers

If you believe your marriage is in trouble, there are several ways you can and should protect yourself:

  1. Don't sign any papers and negotiate on your own. If your spouse requests that you sign any agreements, documents, contracts, promissory notes, deeds, mortgages, etc., refrain. The consequences of signing such papers may be irreparable and detrimental to your case. Just as important as not signing any documents, you should not verbally agree to any terms or agreements prior to talking to an experienced family law attorney.
  1. Hire an Experienced Family Law Attorney. Choosing the right attorney to represent you is an important, and often difficult, decision. In making the decision, you should look for an attorney who is:
    • Professional: Your attorney should look and sound like a professional person. If you meet with a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place, these might be problem signs.

    • Competent: Divorces often involve important issues such as the custody of children and complex financial issues. You should entrust these important considerations to someone who has the knowledge and skill to handle them competently.

    • Respectful: Your attorney should treat you as an adult who needs help with a problem. He or she should recognize that you are in an emotional situation, and not ridicule or embarrass you because you are in a relationship that has not worked out.

    • Compatible: Your attorney will be helping you through an unfamiliar and often traumatic period of your life. Throughout the process, you may need to disclose intimate or even embarrassing information to your attorney. Your attorney must be someone with whom you are comfortable under these circumstances.

    • Candid: Throughout your divorce, you may have to make numerous difficult decisions. It is imperative that your attorney is open and honest with you in helping you make these decisions, rather than simply telling you what you want to hear. While the truth about a given situation may be unpleasant, it is to your benefit to be fully informed.
  1. Don't move out of the marital residence. Especially in situations where there are children involved and custody is a concern, do not move out of the marital residence without talking to your attorney first. If you are in danger and have no choice but to leave, take the children with you.

  2. Put your Documents in Order and Keep them Secure. Make sure your valuable documents are stored in a safe place so that you have access to them at all times. Critical financial documents include tax returns, insurance policies, real estate documents, mortgages, debt information, bank statements, investment accounts, income information and any benefit programs.

  3. Close Joint Financial Accounts. If you and your spouse have any joint credit cards, charge accounts or bank accounts, consider immediately closing, canceling or freezing those accounts. Be careful and considerate, however, with respect to accounts used to auto-pay monthly bills.  You don’t want bills to go unpaid or to harm your or your spouse’s credit rating.  Be sure to keep sufficient documentation about any outstanding balances at the time the account was closed, or, if you are closing a joint bank account, keep accurate documentation of the balance at the time the account was closed as well as an accounting of any transfers, deposits or withdrawals made to or from the account.

  4. Establish Your Own Credit. Before you begin any divorce proceedings, you should make sure that your name is attached to any real estate documents, vehicle titles, pension accounts or other investment accounts. In addition, after you have closed any and all joint financial accounts, you should acquire a credit card and bank account in your name alone.

  5. Create an Inventory of your Assets. Take inventory of your personal property. Photograph, list, and value all property. List property you wish to receive. If you consider any property to be your "non-marital" property, (gifts, inheritance, items belonging to you prior to marriage), create a document trail on how the property was acquired.
  1. Journal all Monthly Expenses and Save Receipts. Keep an accurate accounting of your monthly income and expense. Keep all receipts and deposit tickets. Be cautious of your spending and avoid frivolous shopping sprees.

  2. Take Care of Yourself. Establish a support system consisting of family, friends, neighbors, etc. Take care of your health. Take care of your children. Keep working-don't quit your job.

  3. Play Nice. Don't be mean just to be mean; don't be petty just to be petty. Take the higher ground. Avoid spousal bashing, especially in front of your children. In the end, your divorce will be more bearable and it will be easier for you to move forward.

In order to get the most out of the initial consultation with your attorney and save both time and expense, make sure you have copies of the following documents:

  1. Tax returns for the past five years;
  2. Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
  3. Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
  4. Business records pertaining to ownership, assets, liabilities, income and expenses;
  5. Personal and business bank statements for the past year;
  6. Loan applications/agreements, promissory notes, debt statements;
  7. Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
  8. Insurance records including policies, applications, and invoices;
  9. Financial statements or statements regarding your net worth
  10. Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
  11. Complete list of all personal property.

In addition to gathering the above documentation, we encourage our clients to fill out and return our divorce intake sheet.

A divorce may not be granted in Minnesota unless one of the parties has lived in the state for at least 180 days.

Yes, Minnesota is a no-fault state.  In days gone by, a court could only grant a divorce if the respondent had committed one of these “fault” behaviors:

  1. adultery,
  2. extreme cruelty,
  3. willful desertion,
  4. willful neglect,
  5. abuse of alcohol or controlled substances,
  6. conviction of felony.

Unless a party could prove one of these behaviors, he or she could be trapped in a marriage.  That a person was generally unhappy or that a divorce was love-less wasn’t enough.

Minnesota has now abolished these fault “grounds” for divorce. Today, proof of “fault” is not required.  Instead, “a dissolution of a marriage shall be granted by a county or district court when the court finds that there has been an irretrievable breakdown of the marriage relationship.” M.S., Section 518.06.

 “Irretrievable breakdown” means little more than “I’m not happy in this marriage, and I want out.”  Before this was an acceptable legal reason to divorce, parties could be trapped in unhappy marriages.

Likewise, other than dissipation or wasting assets, a Minnesota court cannot consider marital misconduct, such as infidelity, when dividing asset and debts or considering a spousal support award.

There are two main differences between a legal separation and a divorce. The first is that a divorce ends a marriage and a legal separation does not. The second is that assets and debts are completely and finally allocated in a divorce, but not in a separation.

Otherwise, the two actions bear striking similarities and address the same list of issues. Both actions determine custody, visitation and support of children. Both actions allocate possession and control of assets, with divorces proceeding further, to allocate full ownership rights. Both actions allocate liability for debts, with the allocation again being more complete in a divorce action. Both actions address the need for spousal support. Both address tax and insurance issues and more.

Most people in failed marriages prefer the clean and total break a divorce provides. People who retain a realistic hope for reconciliation or who oppose divorce on moral or spiritual grounds may prefer a legal separation.

As a general matter, each spouse will be allowed to keep 100% of his or her “non-marital assets.”  The value of the “marital” estate—marital assets minus marital debts—is usually divided equally.

In cases of undue hardship, a court can award one party some of the other party’s non-marital assets or can divide the marital estate unequally.

“Nonmarital property” means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which:

  1. is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

  2. is acquired before the marriage;

  3. is acquired in exchange for or is the increase in value of property which is described in clauses (1), (2), (4), and (5);

  4. is acquired by a spouse after the valuation date; or

  5. is excluded by a valid antenuptial contract.

All assets acquired during the marriage, and all debts incurred during the marriage, that are not “non-marital” are marital.

There are two kinds of spousal support, permanent and temporary.  Permanent support is most usually reserved for long-term marriages, and older spouses who have little, if any, earning capacity.  They often involve marriages where one spouse is a high earner and the other is not.  Temporary support is also known as “rehabilitative” support.  It is intended to help a party bridge the gap between being in an economic partnership and being single and self-sustaining.

If a court is at all in doubt over which kind of support is more appropriate, it leans in favor of a permanent award.

When deciding the amount and duration of a spousal support award, Minnesota courts consider many circumstances, including:

  1. the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

  2. the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;

  3. the standard of living established during the marriage;

  4. the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

  5. the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

  6. the age, and the physical and emotional condition of the spouse seeking maintenance;

  7. the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

  8. the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.

The distribution of the parties’ marital debts and assets connects with the spousal support issue.  People who receive handsome estates in their divorce are less likely to receive spousal support

A paying spouse’s taxable income is reduced by the amount of spousal support they pay each year.  Likewise, the receiving spouse must pay income taxes on the spousal support they receive.  Accordingly, both parties should pay attention to tax consequences when negotiating or litigating this issue.