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From the Bench: Dissolution (divorce) in Minnesota

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I have dealt with divorce as a former family law attorney and now as a judge. It can be a painful and complex process. Emotionally, people need to rely on family, friends, and clergy to navigate through the process. Legally, people should consult with experienced family law attorneys to understand the complex issues in divorces. However, it is not uncommon for people to proceed with a divorce without attorneys.

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Minnesota is a "no fault" state meaning that the person filing for divorce does not have to allege fault. However, the party must assert that there has been an "irretrievable breakdown of the marriage relationship." (Minn. Stat. 518.10) In legal terms, a marriage is a civil contract. (Minn. Stat. 517.01)

In essence, a party cannot "fight" the divorce, just the terms of the divorce. Consequently, any "dissolution of marriage" (divorce) requires that the parties decide how financial issues will be wrapped up, and, more importantly, how issues involving the children of the marriage will be handled.

Issues involving children include: legal custody, physical custody, parenting time, child support, medical and dental insurance, and tax exemptions. The courts require attendance at parenting education classes, some of which are available on-line. The judge must determine what is in the best interests of the child(ren) based on 13 statutory factors. If joint custody is sought, the judge must have sufficient information to determine that the parents can cooperate in raising the child(ren).

Financial issues include: business interests, real estate, inheritances, pensions, taxes, bank accounts, personal property and debts. A frequent misconception is that any property titled in one party's name (not held jointly) is that person's property.

However, any property that either party owns or any debt owed during the marriage is presumed to be marital and must be identified and divided fairly and equitably. The parties may need to obtain business valuations, real estate appraisals and personal property appraisals for unique items or collections.

In addition, the parties must consider issues such as health insurance coverage for the parties and maintenance (formerly "alimony").

The judges encourage parties to resolve divorce issues without a trial. It is better to reach an agreement that you can at least live with than to let a judge who knows very little about your family decide these major issues. If the parties cannot reach an agreement, either informally or through court-ordered mediation, a judge (not a jury) will decide the issues after evidence is presented in a trial.

The Minnesota Courts website at www.mncourts.gov has a Self-Help Center with forms for completion by parties without attorneys. However, the forms are detailed (as the site notes, there is "a lot of paperwork" in a divorce) and require the parties to consider all the issues mentioned above just as they would if attorneys were involved.

The Self-Help Center site clearly states that you should not use the forms "for cases involving a large number of assets, property or debts." The site has videos such as "How to Start a Divorce in Minnesota" and "Representing Yourself in Court" to assist you.

Some counties have people to assist you at the courthouse but they cannot give you legal advice about your particular case. Neither can the judge assigned to your case.

If you are contemplating a divorce or know someone going through one, understand that divorces are complex, difficult legal proceedings and require time and attention to resolve.

• • •

The Honorable Ann L. Carrott is a District Court Judge chambered in Douglas County, Minnesota.

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