Frequently Asked Questions:
Does Minnesota have residency requirements for a divorce? Yes. In general, in order for a divorce to be granted in Minnesota, one of the parties must have resided in the state (or have been a member of the armed services stationed in the state) for not less than 180 days immediately prior to the commencement of the proceeding, or; one of the parties must have been a domiciliary of the state for not less than 180 days prior to the commencement of the proceeding. See Minn. Statutes Section 518.07(1)(2024). However, in certain circumstances, a non resident may file for divorce in Minnesota if the civil marriage was performed in Minnesota and neither party resides in a jurisdiction that will maintain an action for divorce by the parties because of the sex or sexual orientation of the spouses. See Minnesota Statues Section 518.07(2)(2024).
Is there a waiting period for a divorce? Maybe. In order to grant a dissolution of marriage in Minnesota, the Court has to find that there is an irretrievable breakdown of the parties marriage. If one of the parties has denied (under oath or affirmation) that the marriage is irretrievably broken then the court must determine that there is no reasonable prospect of reconciliation. The court’s determination must be supported by evidence that the parties have lived separate and apart for not less than 180 days immediately before the state of the proceeding or that there is serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage. Minnesota Statutes Section 518.13(2)(2024).
What do I have to show to get an annulment of my marriage in Minnesota? A marriage in Minnesota can only be annulled in the circumstances outlined by Minnesota code, including – one of the parties lacked capacity to consent at the time the marriage was solemnized, or; one of the parties lacks the physical capacity to consummate the marriage by sexual intercourse and the other party at the time the marriage was solemnized did not know of the incapacity, or; a party was under the age for marriage as established by Minnesota law. See Minnesota Statutes Section 518.02 (2024). Note that there are different time limits to file for an annulment in Minnesota based on the different statutory grounds. See Minnesota Statutes Section 518.05 (2024).
What is legal custody? “legal custody” means the right to make decisions about a children’s upbringing including education, health care and religious training. See Minnesota Statutes Section 518.003(3) (2024). Sole legal custody means that one parent has the exclusive right to make these decisions. Joint legal custody means that both parents share in making these decisions.
What is physical custody? “physical custody” means providing for the routine daily care and control of the child, i.e. the day to day residence of the child. See Minnesota Statutes Section 518.003(3)(2024). Sole physical custody means that one parent provides the child’s primary residence. Joint physical custody means that daily care and the residence of the child are structured between both parents. Joint physical custody does not require an absolutely equal division of time.
Is Minnesota a “no fault” divorce state? Yes. The judge does not need to make a determination of fault or decide who was wrong to award a divorce in Minnesota. The judge will, however, need to make a finding that the marriage is irretrievably broken.
Can the same lawyer represent both my spouse and I? No. Representing both parties in a divorce proceeding is a conflict of interest.
What factors does the court consider in determining custody and parenting time? Minnesota courts consider a variety of factors depending on the circumstances of each family. The primary consideration is making sure the best interests of the child(ren) are met. The statutory factors the court must consider in making a best interests determination are outlined in Minnesota Statutes Section 518.17(1)(a) (2024) which provides –
- a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
- any special medical, mental health, developmental disability, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
- the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
- whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
- any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
- the history and nature of each parent’s participation in providing care for the child;
- the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
- the effect on the child’s well-being and development of changes to home, school, and community;
- the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
- the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
- except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
- the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
The court may not use one of the above factors to the exclusion of all others, and the court must consider that factors may be interrelated. Additionally, the court will not consider conduct of a party that does not affect the party’s relationship with the child.
What things does the court consider in deciding if spousal maintenance or alimony should be awarded? The court may grant a maintenance order for either party pursuant to Minnesota Statute 518.552 (2024) if it finds that the spouse seeking support –
(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for the reasonable needs of the spouse considering the standard of living established during the marriage, especially but not limited to, a period of training or education, or;
(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, or;
(c) is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.