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Jan 14 2020

Understanding Divorce Terminology

We’ve probably all heard terms like annulment or divorce summons before and we have a general understanding of what they mean. But if you’re dealing with any of these family law issues, you’ll need a better understanding of the terminology used in these legal situations.

This blog addresses some commonly misunderstood terms related to divorce and is taken directly from the book Minnesota Divorce & Family Law, by the attorneys at Atticus Family Law. You can access the complete book for free by visiting our homepage and signing up for our newsletter. When you’re ready for more personalized divorce guidance, contact Atticus Family Law to learn how we can help.

Annulment

A legal annulment is a decision by the court that the couple was never married. Some marriages are against the law, such as marriage between close relatives. Annulments are not necessary in such cases because, under the law, there is no marriage. Other marriages may be annulled by the court. For example:

  • one of the parties was mentally limited
  • was too young to marry
  • the couple never had sexual intercourse.

The steps for getting an annulment are similar to the steps for getting a divorce. Most people need an attorney to get an annulment.

A legal annulment should not be confused with a religious annulment. For example, a Catholic may not be permitted to remarry in the church if the church has not determined that the first marriage is null and void. This type of annulment is granted by the church and has no legal effect according to Minnesota law. Likewise, a legal annulment or divorce may not affect how the church looks upon the marriage.

Pre-Nuptial or Post-Nuptial Agreements

Prenuptial and antenuptial (not “anti” although it seems that way) agreements are the same thing. They are different names for a document that sets out the rights of the parties upon dissolution of a marriage when there is a death or divorce. If you signed a pre-nuptial agreement prior to your marriage, let us know. That document should control the terms of the dissolution of the marriage. The law has changed several times in this area and there are some technical requirements and loopholes, so it is important that we examine any premarital agreements.

There are also post-nuptial agreements, which are also documents that control the terms of the dissolution of the marriage. Rather, they are executed after the wedding. They too need to be closely examined. If you signed a post-nuptial agreement after your wedding, let us know.

Legal Separation

Many people think that when a couple wants to live apart, they have to get a “legal separation.” This is not true. A legal separation is not a necessary step in the divorce process. Often couples live apart for a while before they decide to get a divorce. This is not an “illegal” separation – it’s just that you two are separated.

Although legal separation is possible, we do not generally recommend it. A legal separation is similar to a divorce. It takes as long as a divorce. You usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two. If the court grants a legal separation and the husband or wife decides later to get a divorce, a new case must be started.

If you are not ready for a divorce but you want to talk things over with someone, we recommend individual counseling. We will be glad to recommend some therapists. Do not use a “trial separation” as a substitute for effective marriage counseling. If you want the marriage to work, you will probably need marriage counseling. If you do not want a divorce, marriage counseling is a good way to avoid it or to prepare you if you must go through with it.

Generally, the only persons who pursue a legal separation are those who’s orthodox cultures forbid divorce. 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 remains married, and the division of property is not final. For people whose religion prevents divorce, a legal separation may be a solution to their remaining separation needs.

Waiting Period

Irreconcilable differences divorces can be granted in Minnesota as soon as there is an agreement. Compare this to Wisconsin, where a divorce cannot be granted in the initial one hundred twenty (120) days after filing.

Restraining Order in Divorce Summons

In some cases, the parties need some restraints on their behavior while the matter is pending. By service of the divorce summons, the parties are subject to three (3) statutory restraining orders: (1) neither party may dispose of any assets except (i) for the necessities of life or for the necessary generation of income or preservation of assets, (ii) by an agreement in writing, or (iii) for retaining counsel to carry on or to contest this proceeding; (2) neither party may harass the other party; and (3) all currently available insurance coverage must be maintained and continued without change in coverage or beneficiary designation. 

Temporary Relief

In other cases, the statutory restraining order in the Summons is not enough. When one or both parties need more structure, there can be a temporary relief hearing. This hearing can take place after the Summons and Petition have been served. At the hearing, the court makes an order that sets the rules for the parties while the divorce is pending. A temporary relief hearing is especially important if children are involved and there is disagreement over access, if child support needs to be established for the interim, or if we need to get your spouse out of the home and assign essential living expense payments.

Either your spouse’s attorney or we can schedule a temporary relief hearing. Regardless of who schedules, expect us to serve the other party with motion papers, including a Motion for Temporary Relief and an Affidavit. Affidavits are written statements signed under oath. The motion papers are legal papers requesting temporary relief from the court and stating the facts on which the request is based. These facts include the income and expenses of each party, who has the children now, and why they should be in the custody of the party asking for temporary custody.

At the temporary relief hearing, the judge will look at all of the papers that both parties have filed. The attorneys will speak for the parties, and the court may question the parties. It is unusual for the court to take testimony at a temporary relief hearing.

At the end of the hearing, the court will make a temporary order about matters needing temporary decisions. These include:

  1. Temporary custody and parenting time regarding the minor children of the parties;
  2. Temporary child support;
  3. Temporary spousal maintenance;
  4. Temporary attorneys’ fees, costs, and disbursements;
  5. Temporary exclusive or nonexclusive use of the homestead, furniture, household goods; automobiles, and other property of the parties;
  6. Restraining of one or both parties from transferring, encumbering, concealing, or disposing of property except in the usual course of business or for the necessities of life;
  7. Restraint of parties from harassing, vilifying, mistreating, molesting, disturbing the peace, or restraining the liberty of the other party or the children of the parties;
  8. Restraint of one or both parties from removing any minor child of the parties from the jurisdiction of the court;
  9. Exclusion of a party from the family home or from the home of the other party;
  10. Any other order that will facilitate the just and speedy disposition of the proceeding or will protect the parties or their children from physical or emotional harm.

A violation of this part of the order may be a misdemeanor. The party violating it can be ordered to pay a fine or go to jail. 

Talk to a Divorce Attorney Today

Divorce is a complex process, and you shouldn’t have to face it alone. To learn more about how a skilled divorce lawyer can help protect your rights and guide you through this difficult time, please contact Atticus Family Law today. We offer appointments at our four office locations across Minnesota.

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