Minnesota Family Law QA (Part 4)

Q & A: What are the grounds for a divorce under Minnesota law?

Minnesota has a “no-fault” divorce law. This means it is not necessary to prove your spouse is at fault for the breakup of the marriage.

It is only necessary to prove that there has been “an irretrievable breakdown of the marriage relationship.” This means that there is no hope that the spouses will want to live together again as husband and wife.

Because Minnesota has a no-fault divorce law, a spouse who wants a divorce is almost certain to be granted one by the court even if the other spouse does not want a divorce.

It also means that the fault of either spouse in the breakup of the marriage cannot be considered by the court in deciding custody, division of property, or anything else.

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Q & A: Same sex marriages in Minnesota

Effective August 1, 2013, Minnesota authorized legally recognized same sex marriages. In addition, as of August 1, 2013, Minnesota legally recognizes same sex marriages that are legally recognized where they occurred.

For example, if a same sex couple was legally married in Iowa, the marriage is also legal in Minnesota.

All of Minnesota’s laws and procedures about marriage and divorce apply equally to same sex couples.

Minnesota also permits a same sex couple who were married in Minnesota, but who now live in a state that does not recognize that marriage, to get a divorce in Minnesota.

Before a same sex couple gets married or divorced, they may want to talk with an attorney, especially if they were married in another state.

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Q & A: What is the process of depositions in Minnesota divorces?

A divorce deposition is a tool used during the discovery process. Discovery is where the parties exchange information. A divorce deposition is a meeting between the two parties in a divorce. There are two main purposes of a divorce deposition:

A divorce deposition is a tool used during the discovery process. Discovery is where the parties exchange information. A divorce deposition is a meeting between the two parties in a divorce. There are two main purposes to a divorce deposition:

• To uncover relevant documents and information, and
• To obtain statements that can be used as evidence.

The information gathered at depositions will form the basis of the analysis in the upcoming trial or hearings and may be the basis of many important decisions.

Generally, the people present at a divorce deposition include the spouses, the lawyers, a court reporter who will transcribe the deposition, and, in some instances, a guardian ad litem may be present. People requested to be at a deposition will usually receive a “Notice of Deposition” which formally requests their presence at the deposition.

There are many types of information exchanged at a deposition. The information exchanged depends upon the issues that will be raised during the divorce proceeding. Some types of information exchanged include:

• General information: this may include information about the parties such as name, contact information, profession, education, and their relationship to the various parties.
• Specific events and dates.
• Witness information: witnesses can be thoroughly interviewed to obtain their name, identity, profession, and their role in the case. Expert witnesses can be deposed in order to verify their certification and abilities.
• Information previously reviewed: the deponent may be asked whether they have spoken to anyone to prepare for the deposition. The deponent may also be asked whether he or she have previous knowledge of various events, persons, or dates.
• Documents: the parties can request documents from the opposing party during a deposition. Documents previously exchanged are also frequently discussed during the depositions.

Questions asked during a deposition can range from very broad to very specific. A party never has to disclose confidential information when answering a deposition question, but it is best to answer all questions in a cooperative and forthcoming manner. Here are a few examples of questions asked during a deposition:

• What is your name, age, and profession?
• During your marriage, did your partner take care of the needs of your children?
• Do you and your partner have any shared bank accounts or trusts?

Attorney’s play an important role during the deposition. They formulate a strategy and ask the questions of the deponent in order to uncover information that may be favorable for their client.

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Q & A: What are some useful resources for Minnesota families contemplating a divorce or after a divorce?

The American Bar Association publishes manuals that help guide families through the divorce process. Some of the recently published manuals cover topics including parenting time, frequently asked questions about divorce, finances before, during, and after a divorce, guides for parents and stepparents, guides to key events in a divorce case, parenting plans, and co-parenting.

Click here to visit the American Bar Association website.

Click here for more information on Child Custody, click here for more information on Parenting Time, and click here for more information on Divorce.

Q & A: How should child support be calculated when the obligor’s income is based on an hourly wage and commissions?

When an obligor has an hourly wage and commissions, should the commissions be averaged over three years to come up with the gross income for a child support obligation? What happens when the opposing counsel insists on using income which includes the obligor’s best commission year to date?

Averaging is intended for jobs that fluctuate. If the client’s income is only going one way, pay attention to the trend. If there is no trend, averaging makes the most sense. If the client’s best commission year to date was an anomaly, then look to different years for the average.

The judge will consider the best evidence. This may include looking at the obligor’s best commission year, the years following the best commission year, and an average income for the last three or five years.

In practice, a judge can choose to use the best year of commissions to set child support. A judge can refuse to use an average of three years. Even upon appeal of this decision the judge can rubber-stamp the use of the highest commission year. This may not be the way all judges decide these matters. Most attorneys agree that averaging is the most appropriate way to calculate child support in cases that involve wage commissions.

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