Minnesota Family Law QA (Part 3)
Q & A: What happens when one party to a divorce is located out of state?
Courts in Minnesota usually only have power over people and things in Minnesota. This power is called jurisdiction.
If the respondent was served outside of the State of Minnesota, or if the respondent could not be found and was served by publication or other special service, the Minnesota court might be limited to making only the following decisions:
- Dissolve the marriage
- Give custody and parenting time rights of any children who are under the court’s jurisdiction, or
- Award the ownership of property located in Minnesota.
When the respondent is served in another state, a separate child support proceeding can be started with the help of the county support enforcement agency and the county attorney. In this proceeding, the Minnesota court tells the court in the other state that a parent who lives in the other state owes child support.
Q & A: What are divorce education programs?
In any case where parties cannot agree about custody or parenting time of the children, the court will require the parties to attend an orientation and education program.
Some courts have programs for children to attend. The program covers the impact that divorce and the restructuring of families and legal proceedings have upon children and families. It will also cover methods for preventing parenting time conflicts and options for resolving disputes.
If you have a good reason for not attending, you can ask the court to excuse you.
If you claim that there has been domestic abuse, you will not be required to attend the same parent education class as the other party. The court should enter an order describing how the parties may safely participate in the program.
There is a sliding scale fee for this program. However, it may be free if you were not required to pay the divorce filing fee.
Q & A: How long does it take to get divorced in Minnesota?
The length of time to complete a divorce depends upon several things. If both sides reach an agreement or if one spouse never responds to divorce papers, a divorce does not take much time.
If both sides cannot agree, then the judge has to decide. In this case it will take much longer because the court will need to gather information and schedule time in order to make a fair decision. Gathering information might mean having a custody evaluation done or getting financial information.
An uncontested divorce is one where the parties agree on a settlement or one of the spouses does not respond. An uncontested divorce is likely to take a few months.
If the parties disagree, the divorce can sometimes take from six months to two years.
Q & A: What is a legal separation and how does it differ from a divorce?
Many people think that when a couple wants to live apart they have to get a “legal separation.” This is not true. Often couples live apart for a while before they decide to get a divorce. This is not “illegal.”
Legal separations are for people who do not want a divorce (usually for religious reasons). They still need a legal paper to settle custody, support, and property questions. The court makes the same kinds of decisions that it makes in a divorce. However, the couple remain married, and the division of property is not final.
A legal separation is similar to a divorce. It takes as long as a divorce. If the court grants a legal separation and the husband or wife decides later to get a divorce, a new case must be started. A legal separation is not a necessary step in the divorce process. For people whose religion prevents divorce, a legal separation may be best.
Q & A: What is a Guardian Ad Litem and what do they do?
A Guardian Ad Litem is a neutral person appointed by the court. They are appointed for the purpose of the court case and act on behalf of a person not able to take legal action, like a child. For example, a Guardian Ad Litem would be involved throughout all stages of a Paternity Adjudication to advise the court about what is best for the child.
In family and juvenile court, a Guardian Ad Litem advises the court about what is in the best interest of the child regarding custody and parenting time during a case. The Guardian Ad Litem does not have custody. A Guardian Ad Litem should make an independent investigation about what’s best for the child and write a report.
The parties may be asked to pay the costs of a Guardian Ad Litem. However, if you are low-income or represented by legal aid, you may not have to pay any Guardian Ad Litem costs. If either parent is a minor, the court will appoint a Guardian Ad Litem for that parent. In this situation the court usually appoints a relative such as the parent of that minor.
Q & A: What does ‘default’ mean in the context of a Minnesota divorce?
If the respondent does not answer the Petition within 30 days after it was served, the respondent is in default. The petitioner’s attorney tells the court and a default hearing is scheduled. Default hearings are also scheduled when all of the relief to be ordered by the court has been agreed to by the parties in a written agreement called a Stipulation or Marital Termination Agreement. If both parties are represented by lawyers, the divorce may be finalized without a hearing. If both parties did not have lawyers or if the respondent never answered, there is a default hearing.
At a default hearing only the petitioner and his or her attorney need to attend. The petitioner is sworn under oath and testifies to all the facts necessary for the court to order the relief requested in the Petition or Stipulation. In most cases the hearing is very short and simple. Most of the questions can be answered “yes” or “no.” The judge signs the Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree that was prepared in advance by the attorney or “pro se litigant” (person representing themselves).
The divorce becomes final when the court clerk “enters” the Judgment and Decree, which means the clerk writes it down on a court list of all judgments. The Judgment and Decree contains the final decisions of the court. Sometimes it is a week or more after the default hearing before the Judgment and Decree is entered. The court clerk may send a copy of the Judgment and Decree to the petitioner’s attorney. This attorney serves the respondent with the final Judgment and Decree and gives a copy to the petitioner.
There is no waiting period in Minnesota—the divorce is completely final when entered.