FAQs: Minnesota Divorce and Family Law Part I

  1. How does a divorce proceeding start?

First, a person wishing to start a divorce proceeding would meet with an attorney and retain him or her to represent them in a divorce proceeding.  Second, the attorney would draft a Summons and Petition which would start the Minnesota divorce proceeding.  Third, the Summons and Petition would be personally served which typically means the documents would be physically handed to the other spouse.  Generally, a process server would personally serve the Summons and Petition.  Fourth, after service of the Summons and Petition, the process server would draft an Affidavit of Service and provide the document to the attorney.  The Affidavit of Service is the acknowledgement that the other party has been served.  Fifth, the attorney will then file the Summons, Petition, Affidavit of Service, as well as other relevant documents with the Court.  Once the documents have been filed with Court, the Minnesota divorce proceeding has commenced.

  1.  My Husband purchased our home before the marriage, does this mean the house is his?

Not necessarily.  If mortgage payments were made towards the principle of the mortgage during the marriage, marital equity should have been created in the property.  Minnesota courts will apply the Schmitz formula in order to determine each spouse’s nonmarital and marital interest in the property.  Additionally, if the home was refinanced or improvements or remodeling was done to the home during the marriage, this could further dilute the nonmarital interest in the property.  The cases of Schmitz, Dorweiler and Antone set forth formulas which courts may use to calculate the marital/nonmarital interests in a home.

  1. How much is a divorce in Minnesota going to cost me?

It depends.  Simple divorces which are settled right away may cost a few thousand dollars.  Other divorces which continue for multiple years may cost hundreds of thousands of dollars.  The cost of a Minnesota divorce is essentially a function of the time your attorney needs to put into the divorce proceeding.  Other factors to consider are the reasonableness of both parties in resolving issues, contested issues of fact such as whether a party truly owned an asset before the marriage, the size of the marital estate and the valuation of real properties, businesses, complex assets, and other debts.

In many cases experts are needed to help the parties resolve issues.  If the issues cannot be resolved by the parties, the experts can submit their reports through the attorneys to the court.  These reports may help the court in deciding important legal issues such as the amount of spousal maintenance/child support that is appropriate, whether a party met their burden of proof in tracing a nonmarital interest in a home he or she owned before the marriage, and what the parenting time/custody arrangement should look like.   Expert fees may range from several hundred dollars to tens of thousands of dollars.

  1. My Wife and I both want the Home. Who is going to be awarded the property?

Pursuant to Minnesota Statute 518.58, courts are charged with making a “just and equitable” division of the marital estate.  In doing so, courts must issue findings on:

all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.

The above list is not all inclusive.  Many courts will consider whether the party with more parenting time of the minor child(ren) wants to stay in the home (courts love maintaining continuity for children), whether either spouse is able to afford the home after the divorce, amongst other considerations.  If the parties cannot agree on the disposition of the home, the court may choose to exercise its authority to order the sale of the property.

In order to learn more about Minnesota divorce proceedings, Minnesota family law, or other related matters, please contact the Burnsville attorneys at Gilbert Alden PLLC or by calling 612-564-3622 for a free consultation.

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