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Jan 7 2020

Starting the Divorce Process: What You Should Know

Realizing that your marriage is ending can be painful, and often very confusing. After years of helping couples in the Twin Cities area navigate the divorce process, the attorneys at Atticus Family Law collected their best advice into a book, Minnesota Divorce & Family Law, and below is a passage of the book aimed at those new to the divorce process. You can access a free copy of the complete book by signing up for our newsletter. Just visit our homepage and scroll down to the newsletter sign-up section.

For advice specific to your situation, contact Atticus Family Law today to schedule a consultation.

What Are My Rights Before a Divorce?

If you are married and no judge has issued an order involving you, your spouse, & your children, your legal rights are the same whether you are living with your spouse or living apart. Both spouses have the same rights.

If there are children of the marriage, each parent has the right to decide where the children live or go to school, whether the children should see a doctor, and can make other arrangements that need to be made. These decisions are left to the parents, as long as the children are not being hurt. If the children are being hurt, other people might become involved —doctors or nurses, school personnel, community workers, police, or other mandatory reporters. If you do not want your spouse to take or visit the children because you are afraid the children will not be returned or will be harmed, you do not have to let the children go. However, if there is not a threat that your spouse will kidnap the children, you should think about the children’s best interests and whether it would be good for them to see their other parent. If you are concerned about your spouse’s visits, consider getting a protective order. If there are children who were born before the marriage and there has been no adoption or custody order, the mother has sole custody in Minnesota until there is a court order to the contrary.

Each spouse has the right to sell, give away, or dispose of any property the couple owns. For example, either person can withdraw money from a joint bank account. Either can charge on a joint credit card. There are some exceptions to this general rule, however. Neither spouse has the right to cash checks made out to the other spouse. Neither spouse can withdraw money from a bank account if it is in the name of the other spouse only. Neither spouse can sell a motor vehicle that is in the name of the other spouse. Neither can sell real estate, whether it is in both names or in the name of one spouse.

A spouse is not liable to (responsible for paying) creditors for debts of the other spouse except for necessary medical expenses and household articles and supplies used by the family while the spouses live together. A spouse is liable for credit card and other charges by the other spouse if both had agreed to be responsible to the creditor. A spouse may also be liable for credit card debt if that spouse has used the card in the past. Either spouse may close a joint credit card account at any time. In some cases, it may be wise to cancel credit cards immediately.

Neither spouse has the right to assault, rape, injure, or threaten the other. Laws against these actions apply to people even when they are married to each other.

One Divorce Attorney for Both of You?

If there ever was a conflict of interest amongst two people, it has to be they are getting a divorce or are involved in a family law matter. We do not represent both parties in a divorce or other family law matter, although some attorneys do. If you and your spouse have agreed on everything, it may be possible for us to do all the legal work, but we will represent only one of you. If you and your spouse disagree later, we will continue to represent that client unless we have been directed otherwise.

Grounds for Divorce in Minnesota

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 spouses.

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.

Divorce Residency Requirements

One of the two people to a divorce must a resident of Minnesota for 180 days (6 months) before either of you can begin a divorce proceeding. Members of the United States Armed Forces qualify if they have kept their Minnesota residence.

Further it may be filed in the county in which either spouse has lived for the previous thirty (30) days, though often there is a strong preference for the county in which the children have resided for those thirty days; such may be relevant if the parent moved to a county that is irrelevant to the best evidence of the lives of the children.

Filing for Divorce in Minnesota

The legal document that starts the proceeding is the Petition for Marital Dissolution. It also covers certain technical matters and asks the court for anything you might want.

You must ask the court for what you want in the petition otherwise the court cannot give it to you; hence we draft the Petition under the assumption that you and your spouse cannot agree on anything. If the list seems long, or if it includes more than you think is appropriate, think of it as a wish list. If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law or to preserve options (i.e. asking the court to “Awarding such division of property of the parties as the Court deems just and equitable”). If your spouse has already filed, be sure that your lawyer has a copy of the petition as soon as possible.

The person who files first is the petitioner. The other person is the respondent. Some people believe that it matters who is petitioner and who is respondent; rest assured it does not matter who is petitioner and who is respondent.

The respondent must respond to your petition in a formal document known as an answer. The respondent may also want to outline the facts they allege and the relief they want. To do so the defendant files a counter-petition, which is typically combined with the answer.

Contact Atticus Family Law Today

No two divorces are the same. For a detailed assessment of your family law issues, contact the experienced divorce lawyers at Atticus Family Law. They have four locations to better serve clients throughout the Twin Cities and beyond.

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