*The legal component of the parenting course shall provide general Minnesota family law principles. The presentation of this material is not intended to constitute legal advice. Parents should consult with a licensed attorney for answers to specific legal questions.

Court Procedures and Options Available for Mediation

Please see website for Minnesota Revised Statute CHAPTER 518. MARRIAGE DISSOLUTION

https://www.revisor.mn.gov/statutes/cite/518:

Rules & Laws

If you are representing yourself in a divorce in Minnesota, you are responsible for following the same laws and rules as an attorney. Read Rights and Duties of Self-Represented Parties.

Laws & Rules on Divorce

The following is a list of some of the laws and rules that deal with divorce (marriage dissolution) in Minnesota. See also Laws, Rules & Legal Research.

• Stat. ch. 518 Marriage Dissolution
• Stat. ch. 518A Maintenance and Support
• MN Court Rules of Civil Procedure
• MN General Rules of Practice in District Court
• Title I: Rules Applicable to all Court Proceedings
• Title II: Rules Governing Civil Actions
• Title IV: Rules of Family Court Procedure

You may be able to get more help with legal research at your local public law library. You may also be able to get help with legal research from the State Law Library.  Lastly, you can talk with an attorney to get advice on how the rules and laws may affect your case.

518.06 DISSOLUTION OF MARRIAGE; LEGAL SEPARATION; GROUNDS; UNCONTESTED LEGAL SEPARATION.

General Legal Terms and Concepts

Unless otherwise agreed by the parties:

Subd. 3.Custody

(a) “Legal custody” means the right to determine the child’s upbringing, including education, health care, and religious training.

(b) “Joint legal custody” means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.

(c) “Physical custody and residence” means the routine daily care and control and the residence of the child.

(d) “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between the parties.

(e) Wherever used in this chapter, the term “custodial parent” or “custodian” means the person who has the physical custody of the child at any particular time.

(f) “Custody determination” means a court decision and court orders and instructions providing for the custody of a child, including parenting time, but does not include a decision relating to child support or any other monetary obligation of any person.

(g) “Custody proceeding” includes proceedings in which a custody determination is one of several issues, such as an action for dissolution, divorce, or separation, and includes proceedings involving children who are in need of protection or services, domestic abuse, and paternity.

Subd. 3b “Maintenance” means an award made in a dissolution or legal separation proceeding of payments from the future income or earnings of one spouse for the support and maintenance of the other.

Subd. 3b.Marital property; exceptions.

“Marital property” means property, real or personal, including vested public or private pension plan benefits or rights, acquired by the parties, or either of them, to a dissolution, legal separation, or annulment proceeding at any time during the existence of the marriage relation between them, or at any time during which the parties were living together as husband and wife under a purported marriage relationship which is annulled in an annulment proceeding, but prior to the date of valuation under section 518.58, subdivision 1. All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property regardless of whether title is held individually or by the spouses in a form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. Each spouse shall be deemed to have a common ownership in marital property that vests not later than the time of the entry of the decree in a proceeding for dissolution or annulment. The extent of the vested interest shall be determined and made final by the court pursuant to section 518.58. If a title interest in real property is held individually by only one spouse, the interest in the real property of the nontitled spouse is not subject to claims of creditors or judgment or tax liens until the time of entry of the decree awarding an interest to the nontitled spouse. The presumption of marital property is overcome by a showing that the property is nonmarital property.

“Nonmarital property” means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which

(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

(b) is acquired before the marriage;

(c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);

(d) is acquired by a spouse after the valuation date; or

(e) is excluded by a valid antenuptial contract.

Subd. 4.Mediation.

“Mediation” means a process in which an impartial third party facilitates an agreement between two or more parties in a proceeding.

Subd. 5.Parenting time.

“Parenting time” means the time a parent spends with a child regardless of the custodial designation regarding the child.

Subd. 6.Pension plan benefits or rights.

“Pension plan benefits or rights” means a benefit or right from a public or private pension plan accrued to the end of the month in which marital assets are valued, as determined under the terms of the laws or other plan document provisions governing the plan, including section 356.30.

Subd. 7.Private pension plans

“Private pension plan” means a plan, fund, or program maintained by an employer or employee organization that provides retirement income to employees or results in a deferral of income by employees for a period extending to the termination of covered employment or beyond.

Subd. 8.Public pension plan.

“Public pension plan” means a pension plan or fund specified in section 356.20, subdivision 2, or 356.30, subdivision 3, the deferred compensation plan specified in section 352.965, or any retirement or pension plan or fund, including a supplemental retirement plan or fund, established, maintained, or supported by a governmental subdivision or public body whose revenues are derived from taxation, fees, assessments, or from other public sources.

Subd. 9.Residence.

“Residence” means the place where a party has established a permanent home from which the party has no present intention of moving.

518.005 RULES GOVERNING PROCEEDINGS; FORMAL REQUIREMENTS; FEE.

Subdivision 1.Applicable. Unless otherwise specifically provided, the Rules of Civil Procedure for the district court apply to all proceedings under this chapter.

Subd. 2.Title. A proceeding for dissolution of marriage, legal separation, or annulment shall be entitled “In re the Marriage of ………. and ………. .” A custody or support proceeding shall be entitled “In re the (Custody) (Support) of ………. .”

Subd. 3.Names of pleadings. The initial pleading in all proceedings under this chapter shall be denominated a petition. A responsive pleading shall be denominated an answer. Other pleadings shall be denominated as provided in the Rules of Civil Procedure.

Subd. 4.Decree; judgment. In this chapter and chapter 518A, “decree” includes “judgment.”

Subd. 5.Prohibited disclosure. In all proceedings under this chapter and chapter 518A in which public assistance is assigned under section 256.741 or the public authority provides services to a party or parties to the proceedings, the public authority shall not release private data on the location of a party to the action or the joint child if:

(1) the public authority has knowledge that one party is currently subject to a protective order with respect to the other party or the joint child and the protected party or guardian of the joint child has not authorized disclosure; or

(2) the public authority has reason to believe that the release of the information may result in physical or emotional harm to a party or the joint child.

Subd. 6.Filing fee. The first paper filed for a party in all proceedings for dissolution of marriage, legal separation, or annulment or proceedings to establish child support obligations shall be accompanied by a filing fee of $50. The fee is in addition to any other prescribed by law or rule.

“Paternity” is the term used to refer to the legal father of a child under Minnesota law. Once a man is established as the legal father of a child, he has an obligation to financially support the child and he may ask for a court order for custody and parenting time.

While every child has a biological father, establishment of a legal father is not always automatic. Under Minnesota law, if a child’s biological mother and biological father are not married to each other when the child is born, the biological father is not recognized as the legal father until someone takes legal steps to establish paternity. The biological father has no legal rights to the child or responsibilities to financially support the child, even if his name is on the child’s birth certificate. The birth certificate alone is not enough to establish a legal father.

For a more detailed overview, watch the Establishing Parentage video from the MN Department of Human Services.

Best interests of the child

The court’s primary concern in addressing child-related issues is the best interests of the child. The needs of children will be placed ahead of the needs of the parents in the divorce settlement. It is best if both parents are comfortable with the arrangement they have worked out and can implement it with a high level of confidence. When parents are unable to accomplish this on their own, the best interests of children are left to the court. Many times, courts tend to consider issues such as the following:

518.17 CUSTODY AND SUPPORT OF CHILDREN ON JUDGMENT.

 

Role of Custody Study

Minnesota statutes allows the court to order a Custody Evaluation which is an investigation concerning custodial arrangements for the child/ren.    It is not mandatory, but is common in contested custody cases. It can take several months for the evaluation to be completed.   The end result is a report that addresses all of the best interest factors set forth in section 518.17 followed by the Evaluator’s recommendations.

A good custody evaluation will generally include the following:

*at least one both usually two or three interviews with each parent, separately, totaling at least two or three hours for each parent.

*at least one but usually two or three interviews of the children without the parents being present, totaling at least two or three hours.

*in person or telephone consultation with the children’s day care provider, teacher, and any other adults having a close relationship with the children.

*for younger children, a observation of interaction between the children and each parent in each parent’s separate home.

*criminal background check of each parent

*obtaining the mental health records of each parent, including alcohol and drug dependency treatment records.

*ordering a psychological evaluation of the parents, ideally in every case, but at least in every case where credible allegations of mental illness are raised.

*ordering an alcohol and/or chemical abuse assessment where legitimate issues of alcohol or drug abuse are raised.

*records of the children’s school performance.

*all other information relevant to determining the best interests of the children with respect to custody.

Legal Process of Divorce

What is Divorce?

Under MN law, a divorce is called a “Dissolution of Marriage.” Dissolution of Marriage is the legal process to dissolve the marriage of two parties. To get divorced in Minnesota, at least one of the spouses must be living in Minnesota for a minimum of 180 days (or you or your spouse must be a member of the armed forces and that person must have kept their MN residency), and you must file court forms with the district court in the county where one of the spouses is living.

Use the link below to create the forms you need to start a divorce in Minnesota. This online interview helps you decide what type of divorce to file based on your answers and creates all of the forms needed to start a divorce case. This includes a Divorce with Children, Divorce without Children, Joint Divorce with Children, or Joint Divorce without Children.  When you finish the interview, print the forms needed to start your divorce. Electronic filing through Guide & File is available for those filing a Joint Divorce.

For more information, visit https://mncourts.gov/help-topics/guide-and-file

One or both parents retaining an attorney or family mediator usually begins the legal process of divorce. Some couples inform their attorney from the start that they want a fair and equal settlement and to minimize conflict. This approach is recommended. To accomplish this, find an attorney accustomed to working this way, one who helps mediate differences and works toward collaboration and compromise. This will be in everyone’s best interest. A good way to choose an attorney is by getting a referral from a trusted friend or colleague. You will probably want to interview several attorneys, making sure you feel comfortable with their approach. Do not feel bullied into retaining an attorney not to your liking. Many attorneys will do an initial consultation for free, so you can decide if they will represent you effectively given the specifics of your situation.

To start proceeding, a petition which must be served to the other spouse. https://www.mncourts.gov/GetForms.aspx?c=15

In Minnesota, parents proceeding with the dissolution of marriage requires that they begin dealing with some potentially challenging issues. These include financial support, visitation, and dividing up marital assets. In many instances, parents settle these issues on their own or with their attorneys’ assistance outside of court.  Judges prefer that divorcing parents settle their issues before reaching the courtroom, reserving formal trials as a last resort.

Mediation

Divorce mediation is a process in which divorcing spouses negotiate a divorce agreement with the help of a professional who specializes in divorce mediation.

Should we use a Mediator?

While many people still opt to retain their own attorneys, more and more couples are looking for alternatives to the traditional adversarial divorce. Today, many couples consult family mediators to assist with sensitive child-sharing and custody arrangements. Mediation is the process of finding a mutually acceptable settlement to the disputed issues in the divorce.  Mediators are individuals who have specialized training in conflict resolution and they can either be court appointed or retained directly by divorcing spouses.

The mediator’s job is to help couples resolve their various logistical sticking points without getting bogged down in personal conflict.  In a safe, non-threatening environment, an effective mediator will help identify important issues, consider both parents’ perspective and opinions, and ease conflict around differences or painful topics. When parents begin old patterns of arguing and disagreeing, a skilled mediator will keep the focus on the issues at hand and remind parents that attacking one another is not helpful to the mediation process, nor to the health and well-being of their children. According to a recent CBS news story, 95% of all divorces filed never go to trial but are settled beforehand. Therefore, if you can work from a reasonable balance of power and compromise, it makes sense to work out your settlement together with a skilled negotiator, rather than under pressure from the court.

https://www.cbsnews.com/news/the-divorce-process/

Stages of Mediation

Mediation is a multi-stage process designed to get results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation process that account for the system’s high rate of success.

Stage 1: Mediator’s opening statement.  The mediator introduces everyone, explains the goals and rules and encourages each side to work cooperatively toward a settlement.

Stage 2: Disputants’ opening statements. Each party is invited to describe the dispute and its consequences. When one person is speaking, the other is not allowed to interrupt.

Stage 3: Joint discussion. Some parties may respond directly to the opening statements in an attempt to further define the issues.

Stage 4: Private caucuses. The private caucus is a chance for each party to meet privately with the mediator in separate rooms.  The mediator will go between the two rooms to discuss the strengths and weaknesses of each position and to exchange offers.  These private meetings are crucial in the mediation.

Stage 5: Joint negotiation. After caucuses, the mediator might bring the parties back together to negotiate directly, but this doesn’t usually happen until a settlement is reached or the time allotted for the mediation ends.

Stage 6: Closure. If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn’t reach an agreement, the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations by phone.

Some advantages of using mediation are:

Cost-Effective

Family and divorce mediation is extremely cost-effective. There will not be separate meetings with separate attorneys, no telephone calls with you and each other, no settlement conferences and preparations for court which adds up with two professionals’ time and expense.  In contrast, mediation relies on direct communication and the mediator’s skill in keeping the dialog constructive and focused.

Parental Control

Family and divorce mediation preserves control over your individual and family’s futures.  You, not the attorneys or judges, determine major decisions about your children such as how time is shared, child support agreements, property and asset division.  Cooperative face-to-face problem-solving often allows for more detailed planning, creative and satisfactory outcomes.

Promotes Child-Focused Parenting

The style and approach of family and divorce mediation helps to focus on your children’s needs and to improving your parenting relationship over time.   Family mediation promotes co-parents to manage their relationship with each other with a level of dignity and respect.

Confidential

All of your settlement discussions in family and divorce mediation are protected as confidential. Your statements, questions or concerns can’t be used against you in court or elsewhere. Your family’s circumstances won’t be discussed in open court.

Neutral

An individual or organization who provides an Alternative Dispute Resolution service, such as mediation or arbitration. Only Neutrals who are on the State Court Administrator’s Neutral Roster are qualified. Neutrals are professionals with a wide variety of backgrounds. Some are also attorneys but they do not represent anyone for whom they are acting as a neutral.  This process works when both parties discuss the desired outcomes to the professionals.  The Neutral will then suggest the resolutions that are in line with that the court would do but is not legally binding.

The Guardian ad Litem

In determining the best interests of the child, courts often appoint a Guardian ad Litem to investigate the child’s situation and make a recommendation to the court. The Guardian ad Litem (usually an attorney or specially trained layperson) has a duty to act on behalf of the child, advocating the child’s wishes if the child is old enough to express a preference. He or she is responsible for protecting the child from the effects of adversarial court proceedings; monitoring agencies and individuals who provide health, education, and social services to the child; collecting records and reporting to the court; and ensuring that the child’s wishes are presented to the court. The Guardian ad Litem’s recommendation is not binding on the court, but the court usually considers the Guardian’s recommendation.

For more information, please visit https://www.revisor.mn.gov/statutes/cite/518.165

Child support

Every state has guidelines for establishing or modifying child-support arrangements. In Minnesota, these services are administered by the CENTRAL COLLECTIONS UNIT.

https://mn.gov/dhs/people-we-serve/children-and-families/services/child-support/programs-services/payments.jsp

The commissioner of human services shall create and maintain a central collections unit for the purpose of receiving, processing, and disbursing payments, and for maintaining a record of payments, in all cases in which:

(1) the state or county is a party;

(2) the state or county provides child support enforcement services to a party; or

(3) payment is collected through income withholding.

The commissioner may contract for services to carry out these provisions, provided that the commissioner first meets and negotiates with the affected exclusive representatives.

Typically, both parents submit information on their income and expenses to the court, and the court then issues an order specifying the amount to be paid. In ordering child-support payments, the courts must either follow the guidelines or explain why not.

518A.35 GUIDELINE USED IN CHILD SUPPORT DETERMINATIONS.

Subd 1.Determination of support obligation. (a) The guideline in this section is a rebuttable presumption and shall be used in any judicial or administrative proceeding to establish or modify a support obligation under this chapter.

(b) The basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children and the combined parental income for determining child support of the parents.

(c) If a child is not in the custody of either parent and a support order is sought against one or both parents, the basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children, and the parent’s individual parental income for determining child support, not the combined parental incomes for determining child support of the parents. Unless a parent has court-ordered parenting time, the parenting expense adjustment formula under section 518A.34 must not be applied.

(d) If a child is in custody of either parent and a support order is sought by the public authority under section 256.87, unless the parent against whom the support order is sought has court-ordered parenting time, the support obligation must be determined by referencing the guideline for the appropriate number of joint children and the parent’s individual income without application of the parenting expense adjustment formula under section 518A.34.

(e) For combined parental incomes for determining child support exceeding $15,000 per month, the presumed basic child support obligations shall be as for parents with combined parental income for determining child support of $15,000 per month. A basic child support obligation in excess of this level may be demonstrated for those reasons set forth in section 518A.43.

Subd. 2.Basic support; guideline. Unless otherwise agreed to by the parents and approved by the court, when establishing basic support, the court must order that basic support be divided between the parents based on their proportionate share of the parents’ combined monthly parental income for determining child support (PICS). Basic support must be computed using the following guideline found on website https://www.revisor.mn.gov/statutes/cite/518A.35.

Subd. 3.Income cap on determining basic support. (a) The basic support obligation for parents with a combined parental income for determining child support in excess of the income limit under subdivision 2 must be the same dollar amount as provided for the parties with a combined parental income for determining child support equal to the income limit under subdivision 2.

(b) A court may order a basic support obligation in a child support order in an amount that exceeds the income limit in subdivision 2 if it finds that a child has a disability or other substantial, demonstrated need for the additional support for those reasons set forth in section 518A.43 and that the additional support will directly benefit the child.

Subd. 4.More than six children. If a child support proceeding involves more than six children, the court may derive a support order without specifically following the guidelines. However, the court must consider the basic principles encompassed by the guidelines and must consider both parents’ needs, resources, and circumstances.

Methods of paying child support:

518A.56 MANDATORY PAYMENT OF OBLIGATIONS TO CENTRAL COLLECTIONS UNIT.

Subdivision 1.Location of payment. All payments described in section 518A.55 must be made to the central collections unit.

Subd. 2.Agency designation of location. Each local child support agency shall provide a location within the agency to receive payments. A local agency receiving a payment shall transmit the funds to the central collections unit within one working day of receipt of the payment.

Subd. 3.Incentives. Notwithstanding any rule to the contrary, incentives must be paid to the county providing services and maintaining the case to which the payment is applied. Incentive payments awarded for the collection of child support must be based solely upon payments processed by the central collections unit. Incentive payments received by the county under this subdivision shall be used for county child support collection efforts.

Subd. 4.Electronic transfer of funds. The central collections unit is authorized to engage in the electronic transfer of funds for the receipt and disbursement of funds.

Subd. 5.Required content of order. A tribunal issuing an order that establishes or modifies a payment shall issue an income withholding order in conformity with section 518A.53. The automatic income withholding order must include the name of the obligor, the obligor’s Social Security number, the obligor’s date of birth, and the name and address of the obligor’s employer. The street mailing address and the electronic mail address for the central collections unit must be included in each automatic income withholding order issued by a tribunal.

Subd. 6.Transmittal of order to local agency by tribunal. The tribunal shall transmit a copy of the order establishing or modifying the payment, and a copy of the automatic income withholding order, to the local child support agency within two working days of the approval of the order by the judge or child support magistrate or other person or entity authorized to sign the automatic withholding order.

Subd. 7.Transmittal of funds from obligor or payor of funds to central collections unit. The obligor or other payor of funds shall identify the obligor on the check or remittance by name, payor number, and Social Security number, and shall comply with section 518A.53.

Subd. 8.Sanction for checks drawn on insufficient funds. A notice may be directed to any person or entity submitting a check drawn on insufficient funds stating that future payment must be paid by cash or certified funds. The central collections unit and the local child support agency may refuse a check from a person or entity that has been given notice that payments must be in cash or certified funds.

Subd. 9.Admissibility of payment records. A copy of the record of payments maintained by the central collections unit in section 518A.55 is admissible evidence in all tribunals as proof of payments made through the central collections unit without the need of testimony to prove authenticity.

Subd. 10.Transition provisions. (a) The commissioner of human services shall develop a plan for the implementation of the central collections unit. The plan must require that payments be redirected to the central collections unit. Payments may be redirected in groups according to county of origin, county of payment, method of payment, type of case, or any other distinguishing factor designated by the commissioner.

Subd. 11.Collections unit recoupment account. The commissioner of human services may establish a revolving account to cover funds issued in error due to insufficient funds or other reasons. Appropriations for this purpose and all recoupments against payments from the account shall be deposited in the collections unit’s recoupment account and are appropriated to the commissioner. Any unexpended balance in the account does not cancel, but is available until expended.

Subd. 12.Unclaimed support funds. (a) If support payments have not been disbursed to an obligee because the obligee is not located, the public authority shall continue locate efforts for one year from the date the public authority determines that the obligee is not located.

(b) If the public authority is unable to locate the obligee after one year, the public authority shall mail a written notice to the obligee at the obligee’s last known address. The notice shall give the obligee 60 days to contact the public authority. If the obligee does not contact the public authority within 60 days from the date of notice, the public authority shall:

(1) close the nonpublic assistance portion of the case;

(2) disburse unclaimed support funds to pay public assistance arrears. If public assistance arrears remain after disbursing the unclaimed support funds, the public authority may continue enforcement and collection of child support until all public assistance arrears have been paid. If there are no public assistance arrears, or unclaimed support funds remain after paying public assistance arrears, remaining unclaimed support funds shall be returned to the obligor; and

(3) mail, when all public assistance arrears have been paid the public authority, to the obligor at the obligor’s last known address a written notice of termination of income withholding and case closure due to the public authority’s inability to locate the obligee. The notice must indicate that the obligor’s support or maintenance obligation will remain in effect until further order of the court and must inform the obligor that the obligor can contact the public authority for assistance to modify the order. A copy of the form prepared by the state court administrator’s office under section 518A.39, subdivision 6, must be included with the notice.

(c) If the obligor is not located when attempting to return unclaimed support funds, the public authority shall continue locate efforts for one year from the date the public authority determines that the obligor is not located. If the public authority is unable to locate the obligor after one year, the funds shall be treated as unclaimed property according to federal law and chapter 345.

Subd. 13.Child support payment center. Payments to the commissioner from other governmental units, private enterprises, and individuals for services performed by the child support payment center must be deposited in the state systems account authorized under section 256.014. These payments are appropriated to the commissioner for the operation of the child support payment center or system, according to section 256.014.

Failure to pay child support:

518A.60 COLLECTION; ARREARS ONLY.

Please click on link below for information regarding collection of child support in arrears.

https://www.revisor.mn.gov/statutes/cite/518A.60

518.58 DIVISION OF MARITAL PROPERTY.

https://www.revisor.mn.gov/statutes/cite/518.58

Subdivision 1.General.

Upon a dissolution of a marriage, an annulment, or in a proceeding for disposition of property following a dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property and which has since acquired jurisdiction, the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its 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 court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage. The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. If there is a substantial change in value of an asset between the date of valuation and the final distribution, the court may adjust the valuation of that asset as necessary to effect an equitable distribution.

Subd. 1a.Transfer, encumbrance, concealment, or disposition of marital assets.

During the pendency of a marriage dissolution, separation, or annulment proceeding, or in contemplation of commencing a marriage dissolution, separation, or annulment proceeding, each party owes a fiduciary duty to the other for any profit or loss derived by the party, without the consent of the other, from a transaction or from any use by the party of the marital assets. If the court finds that a party to a marriage, without consent of the other party, has in contemplation of commencing, or during the pendency of, the current dissolution, separation, or annulment proceeding, transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life, the court shall compensate the other party by placing both parties in the same position that they would have been in had the transfer, encumbrance, concealment, or disposal not occurred. The burden of proof under this subdivision is on the party claiming that the other party transferred, encumbered, concealed, or disposed of marital assets in contemplation of commencing or during the pendency of the current dissolution, separation, or annulment proceeding, without consent of the claiming party, and that the transfer, encumbrance, concealment, or disposal was not in the usual course of business or for the necessities of life. In compensating a party under this section, the court, in dividing the marital property, may impute the entire value of an asset and a fair return on the asset to the party who transferred, encumbered, concealed, or disposed of it. Use of a power of attorney, or the absence of a restraining order against the transfer, encumbrance, concealment, or disposal of marital property is not available as a defense under this subdivision.

Subd. 2.Award of nonmarital property.

If the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property as defined in section 518.003, subdivision 3b, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the marital property, apportion up to one-half of the property otherwise excluded under section 518.003, subdivision 3b, clauses (a) to (d), to prevent the unfair hardship. If the court apportions property other than marital property, it shall make findings in support of the apportionment. The findings shall be based 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, and opportunity for future acquisition of capital assets and income of each party.

Subd. 3.Sale or distribution while proceeding pending.

(a) If the court finds that it is necessary to preserve the marital assets of the parties, the court may order the sale of the homestead of the parties or the sale of other marital assets, as the individual circumstances may require, during the pendency of a proceeding for a dissolution of marriage or an annulment. If the court orders a sale, it may further provide for the disposition of the funds received from the sale during the pendency of the proceeding.

(b) The court may order a partial distribution of marital assets during the pendency of a proceeding for a dissolution of marriage or an annulment for good cause shown or upon the request of both parties, provided that the court shall fully protect the interests of the other party.

Subd. 4.Pension plans.

(a) The division of marital property that represents pension plan benefits or rights in the form of future pension plan payments:

(1) is payable only to the extent of the amount of the pension plan benefit payable under the terms of the plan;

(2) is not payable for a period that exceeds the time that pension plan benefits are payable to the pension plan benefit recipient;

(3) is not payable in a lump-sum amount from defined benefit pension plan assets attributable in any fashion to a spouse with the status of an active member, deferred retiree, or benefit recipient of a pension plan;

(4) if the former spouse to whom the payments are to be made dies prior to the end of the specified payment period with the right to any remaining payments accruing to an estate or to more than one survivor, is payable only to a trustee on behalf of the estate or the group of survivors for subsequent apportionment by the trustee; and

(5) in the case of defined benefit public pension plan benefits or rights, may not commence until the public plan member submits a valid application for a public pension plan benefit and the benefit becomes payable.

(b) The individual retirement account plans established under chapter 354B may provide in its plan document, if published and made generally available, for an alternative marital property division or distribution of individual retirement account plan assets. If an alternative division or distribution procedure is provided, it applies in place of paragraph (a), clause (5).

(c) If liquid or readily liquidated marital property other than property representing vested pension benefits or rights is available, the court, so far as possible, shall divide the property representing vested pension benefits or rights by the disposition of an equivalent amount of the liquid or readily liquidated property.

(d) If sufficient liquid or readily liquidated marital property other than property representing vested pension benefits or rights is not available, the court may order the revocation of the designation of an optional annuity beneficiary in pension plans specified in section 356.48 or in any other pension plan in which plan-governing law or governing documents allow revocation of an optional annuity in marital dissolution or annulment situations.

518.552 MAINTENANCE.

How should we deal with debt?

When you divorce, you divide not only property, but debt as well. In general, you both are responsible for paying any debts acquired during the marriage. Managing debt issues carefully during the divorce process may lead to less conflict and a more stable environment for you and your children. You should act promptly to close all joint credit cards or other lines of joint credit. Be sure to establish credit in your own name before doing so. Often, you can open an individual account when you close a joint one. A credit card can help you through some short-term emergencies during the divorce transition. However, avoid saying, ”charge it,” rather than making necessary cuts in spending after divorce. Make a list of the outstanding balances on any credit cards or other debts. Get the address of a credit bureau from the phone book and request a credit report to make sure you are aware of all open accounts. Once the divorce is filed, debts should be divided between you and your spouse, and each person should be responsible for payment of his/her debt.

Remember that even after the divorce is final, creditors may attempt to collect on debts from both partners. A divorce decree will be honored by the courts, but it may not matter to collectors—their goal is to collect the money. It is not always possible to remove your name from a joint debt until the debt has been paid in full. Finding out what your options are and remaining aware of your financial situation can help ease the financial separation that comes with the divorce process. This process will take time, but the payoff is a brighter financial future.

How do I handle my ex’s failure to make timely child-support payments?

One potential problem with respect to finances involves late payment or non-payment of child support. While it is tempting for parents to consider withholding visitation rights in this circumstance, it is never a good idea. Experts agree that withholding visitation does children more harm than good, and it risks getting yourself into legal trouble as well. Instead, you should attempt to resolve the matter with the other parent directly. If you are unsuccessful, consult an attorney to help enforce correct and timely child-support payments. Be aware that you still have a responsibility to your children as you are dealing with stressful financial situations. Realize that your children will be aware of your angry feelings, even if you do not openly bad-mouth the other parent. Children of all ages know how parents feel toward one another, regardless of what is said.

In summary, be aware that finances are a big consideration when divorcing. Parents who can discuss financial issues calmly and fairly will ultimately save money. Remember to get professional advice where appropriate. In addition, realize that your children will fare much better and feel more secure when they see you handling adult matters (such as financial issues) with fairness, dignity, and respect.

To have a better understanding of the emotional and financial responsibilities of co-parents to their  children

 

Divorce means more than physically separating as a family. It also means separating your family finances. Both types of separation can bring great emotional stress. You will be better off financially, however, if you can keep your emotions from influencing your financial decisions. At the very least, you will be able to make better financial decisions for yourself and your children. The following information will help familiarize you with some issues that accompany the division of finances during a divorce. It is not intended as a complete guide or as a substitute for legal or financial advice.

How do we begin to separate financially?

During a marriage, one spouse usually takes primary responsibility for managing finances and keeping financial records. If you are not well informed, this is your opportunity to be involved in your financial affairs. Many people feel anxious when considering finances, but realize that it is mostly about gathering information and making decisions. The sooner you begin participating in your financial decisions, the sooner you will have the peace of mind that you are taking the necessary steps. Remember, knowledge provides you with a more realistic view of your financial situation as decisions are made. Even in ‘friendly’ divorces, you should not rely on fate to determine what to do about shared property or joint accounts. Be aware that accounts shared jointly can be accessed by both parties. In addition, each person authorized to use a credit card can run up an extensive bill. Try to be objective about your situation and use some common sense. Your immediate goal is to reduce your financial ties to the person you are divorcing; your ultimate goal is to create two financially separate households. While it is usually impossible to sever all financial ties, you can greatly reduce the areas where you are at risk. Seek the advice of an accountant or financial planner to help you learn about various financial issues.

How do we divide property?

In general, each person is entitled to an equitable or fair distribution of the property. Property includes automobiles, homes, and furniture, in addition to possessions such as cash-value insurance policies, pension funds, savings accounts, etc. As you negotiate the division of property, think about your needs and the needs of your children, as well as the financial consequences of your decisions. Frequently, material items that you valued during your marriage may have little value once you are divorced. It is not uncommon for people to spend a great deal of time arguing over material possessions. It can also be a ready-made battleground for continuing past marital arguments. Choose your battles carefully, and realize that you will be making some concessions when it comes to material possessions. Ultimately, you and your children will be better off if you can minimize the conflict around dividing property and material possessions.

Parental Alienation

Parental alienation is a process that can occur between two parents who are consciously or unconsciously trying to influence the children at the emotional expense of the other parent. Named by Dr. Richard Gardner, Parental Alienation Syndrome (PAS) is a distinctive family response to divorce in which the child becomes aligned with one parent and preoccupied with unjustified and/or exaggerated denigration of the other parent. In severe cases, the child’s once love-bonded relationship with the target parent is destroyed. If, however, the reason(s) for the alienation can be substantiated by documented abuse or neglect, then the alienation is necessary for the child’s safety and well-being, and PAS would not be an appropriate designation or explanation for the children’s feelings or the alienating parent’s actions.

Case Study

One of the most difficult issues to navigate when going through a divorce is the legal side of things. A few years back I had a case involving Damien (31) and Michelle (29). They had been happily married for seven years before it was discovered that Michelle had been having a long-standing affair with a co-worker. Damien was furious and underneath the anger, of course, was hurt. After a brief course of ineffective traditional marriage counseling, he decided to file for divorce.

Like many people in this situation, Damien sought out an attorney. However, he first asked his brother to act as a mediator since he wanted to reduce legal costs as much as possible. Fortunately for Damien, his brother was training to be a lawyer, and so had at least some familiarity with legal matters.
Damien and Michelle had just had a newborn baby a few months before the revelation of the affair, and so, on the suggestion of Damien’s brother, they sought out counseling. Not to figure out how to stay together, but rather to figure out how to transition out of the relationship in a loving and healthy way. Although this was both of their stated wishes, their initial presentation was that they were headed for a very contentious divorce. It soon became apparent they had marital issues long before the revelation of the affair.

Like many couples, Damien and Michelle came in with their own ideas about custody.  We also discussed various issues related to visitation schedules and finances. I told Michelle, like I tell all couples in divorce counseling, they can decide some of these issues themselves, or pay to have attorneys help decide for them. I also reminded them that they would be more likely to stick with a system of their own construction, rather than one that was imposed on them from attorneys.

So much of Damien’s initial anger and frustration was because he was hurt by Michelle’s affair. We openly discussed the affair in ways that allowed Damien to express his emotions. At the same time, Michelle got the opportunity to discuss how she felt pushed to look outside the marriage to get her needs met. These were difficult conversations, fraught with a lot of intense emotion and they took a lot of courage to have. However, it was important that they arrive at some understandings to allow them to move past a very painful situation. It was through these conversations that this couple was able to realize the opportunities available to them as parents   as they strive to be happy. They were able to clear away the hurt and frustration and this couple was able to make great strides toward providing a stable environment for their child, as well as themselves.

This couple also used our counseling sessions to talk about some serious issues concerning how best to raise their daughter. At first I was worried that they were a little immature, but I came to realize they were just in shock at how fast their marriage had disintegrated after making such a large commitment to raise a child together. Whenever I find myself judging clients, I am reminded that divorce takes good people and sometimes causes them to do destructive things. It is the process itself, that can take otherwise responsible people, and reduce them to making poor choices for themselves and their children.
Once Damien and Michelle both realized the severity of the situation, they decided it was best to divide up assets based on the needs of their newborn. This drastically reduced the tension between the parties, and from there, a firm basis for dialogue was soon established.

Damien set out immediately to find work in order to able to pay child support, but to also clear the debt the couple had accumulated over the years. Although the parties retained a cold personal relationship, they had finally learned how to deal with one another in a formal, official capacity as the parents of a young child.

During my sessions with this, couple Damien missed one payment, and Michelle feared he had gone off the rails. I arranged another meeting, and found out that Damien had lost his job. With a few more sessions he was energized again, and quickly found employment. Upon a 6-month follow-up, he had not failed to meet another obligation or payment related to his daughter Macy (now age 2).

If you would like to print out the information seen above in this chapter, please refer to the following PDF document. 

CHAPTER 3 PRINT OUT