Southern Minnesota Family Law

• Divorce
• Child Custody
• Child Support
• Premarital Agreements
• Marital Property
• Divorce Mediation
• Unmarried Parents

I. Divorce

How much does a divorce cost?

Divorces in Minnesota are usually handled on an hourly basis. Lawyers ask for a certain amount of money to be put in the trust account. This means that if you have a relatively simple or straightforward divorce that involves only children or limited property distribution, it will cost less than a complex case that involves business and non-marital property. A “normal” divorce is usually between $2,500 to $4,500. If the case involves farms, businesses, high wage earner cases or very contentious custody and parenting time battle it can cost in excess of $10,000.

How long will a divorce take?

This is a question that really depends on the specifics of your case and how complex it is. If you agree on just about everything with your soon to be ex-spouse, it can actually take less than a month. However, if you don’t agree on most things, then you usually have to serve the other person with a divorce petition and they will usually have to draft and file an answer (which, in Minnesota, is due 30 days after he or she was served). Then you will usually have to go to a hearing called an ICMC or the Initial Case Management Conference to see if mediation or trial is more appropriate. A “normal” divorce usually takes 2-6 months, but this is a very vague estimate and really depends on your specific cases.

Do I Have to Go to Court to Get a Divorce in Minnesota?

Divorce is hard. Even when both spouses agree that it is the best decision, it is still a deeply emotional and logistically complicated process. You may be wondering: Are you required to testify in court to get a divorce in Minnesota? The answer depends on the specific facts of your case. With a contested divorce, you will be required to go to court. 

Contested Divorce vs. Uncontested Divorce

Divorce cases in southern Minnesota fit into two broad categories: contested divorce and uncontested divorce. A contested divorce is a disputed divorce. A judge will be needed to make a decision on one or more key issues, such as property division, alimony, or child custody/visitation. With a contested divorce, you need to be ready to go to court. 

An uncontested divorce is one in which the spouses are able to reach a settlement on their own. Under Minnesota law (Sec. 518.06 MN Statutes), “the court shall grant a decree of legal separation” when a couple is able to reach an uncontested divorce. In general, a limited court appearance is all that is needed in an uncontested divorce case. 

Uncontested Divorce: A Court Appearance May Be Required—But Only a Simple One

For an uncontested divorce to be finalized, a judge must accept the agreement reached by the parties. As a general rule, Minnesota courts give married couples wide deference to reach their own voluntary divorce settlements—particularly when each party is represented by a qualified divorce attorney. If you can reach an uncontested divorce agreement with your partner, it is unlikely that you will be called upon to testify in court. 

That being said, both spouses should still be prepared to attend a relatively brief court hearing. During a brief appearance, they can then present their uncontested divorce settlement to a Minnesota court. Assuming there are no problems, the judge will then issue an official decree of dissolution, thereby finalizing the divorce. 

Summary: If you are locked in a contested divorce dispute, you should be prepared to testify in court. If you are able to reach a full settlement with your spouse, you can get an uncontested divorce. With an uncontested divorce, only a simple and relatively brief court appearance will be required. 

How does the process ACTUALLY work?

Divorces are started in Minnesota by serving the other side with a legal document called a Petition for Marital Dissolution. The other party then has 30 days to reply with an answer and usually, discovery is next.  Discovery is where questions are asked and answered, in writing and under oath. Once this is done, the lawyers typically talk about ways to avoid trial, such as ICMC , mediation, or ENE (early neutral evaluation).

One key issue is that just because lawyers are involved does not mean that the case will go to trial or will end up “in court.”  The goal of a divorce lawyer is really to be sure that you are being protected and to move the case forward as smoothly and efficiently as possible, and not just to fight.

How do we get started with the divorce process?

First, you need to make the very personal decision, do you feel you need to get divorced? If you have been served with a petition for dissolution, then you should call and set up an initial consultation right away. But, if you haven’t been served, but still think you may need a divorce, call and we can go over your options. It’s important to note that at Kohlmeyer Hagen, we will not talk you into a divorce. You have our word on that. Divorce is a serious decision that you, your family, and perhaps your clergy, need to weigh carefully.

We view our job as giving you the information you need to help you make the decision of whether or not to proceed.

To officially start the divorce with us, we need three things:

• A signed retainer, which can be done digitally and you don’t even need come into the office.
• Payment of the retainer amount into the trust account.
• A completed intake packet, which we send to you digitally.

Once we get these documents, we can start working on your divorce.

Can I make my spouse move out of the house?

The short answer is, maybe. If you are married and living together, you each have an equal right to the property. This means that if you change the lock on your door, your husband or wife has the right to break in (after all, they do own ½ the door!).  You may need to file what’s called a “Motion for Temporary Relief” in order to get the judge to order your soon-to-be ex-spouse to move out.

II.  Child Custody

Who gets to decide where the kids go to school?

Minnesota has two distinct types of custody; legal and physical.  Legal custody deals with education, and most of the time you will have joint legal custody with your ex. If you have joint legal custody, you will have to agree on where the kids go to school. If you can’t decide together, the court will ultimately decide for you.

Who pays for children’s medical insurance?

Medical insurance premiums are considered a form of child support in Minnesota.  This means that over and above cash child support payments, the court will take both parties’ incomes, divide them, and assign a percentage to each parent to cover the kid’s health insurance.  This law was changed in 2007/2008, and we rarely argue about this any longer as it really is just a calculation.

Who pays for extracurricular activities?

This is a tricky question and one that isn’t very clear. If the divorce decree is silent as to who pays, then you’ll have to work it out with your ex. While the cost of activity fees, camps, clothing, etc. can be very expensive, it is not dealt with under Minnesota child support laws and you normally have to work this out during the divorce process to see who will pay what fees in the future.

Can I take the kids out-of-state?

You can usually leave the state with your kids, as long as you intend to return. This is true both during the divorce and after. The issue that comes up very frequently, however, is moving out of state. To move out of state, that parent that intends to move must get permission from the other parent.

III.  Child Support

How much do I have to pay for child support?

Every state is unique in how they calculate child support. Minnesota looks at the number of overnights each parent has and takes into account the income each parent has to come up with a monthly payment that is owed.  A few key issues to remember is that you need to have a court order that specifically grants a number of overnights in the order.

One area where it can get tricky is when a person is not employed, underemployed, owns a small business, or has a significant bonus structure in place.

How long do I have to pay child support?

Most parents have to pay until 1) the child turns 18 and is legally an adult, or 2) the child graduates high school. It’s important to note that it’s the later of the two events. If your child turns 18 in April, but graduates in June, child support is owed until June. There are rare occasions where a Minnesota court can order child support past those instances, such as the child having a very serious health condition or other need-based reason.

Who pays for daycare/childcare?

Just as the court looks at the PICS (parental income available for child support) amount and determines the percentage each parent has available for health insurance, the same is done for daycare. There are instances such as when the county or state is involved and provides Minnesota Care or Minnesota Assistance where the formula is different, but generally, it’s the same percentage as health insurance.

IV. Premarital Agreements

Why do I need a premarital agreement?

A premarital agreement, or prenuptial agreement, is not the most romantic thing to do prior to marriage but can save an enormous amount of money and stress if you get divorced. Even if you are not wealthy, if you are bringing either assets into the marriage or you anticipate gifts from your parents or others while you’re married, then it’s important to at least consider having a prenuptial agreement prepared.

How do I keep my non-marital property safe?

The short answer is to NOT “co-mingle” the property. The commingling property is where you take non-marital property and mix it with marital property.  An example would be if you had an IRA prior to getting married and kept contributing to it after you were married. This causes the money to mix together and makes it hard for the court to determine exactly what was non-marital.

A better solution is to keep the accounts separate or start a new account, leaving the old one untouched, while you are married.

Can a premarital agreement (AKA antenuptial agreement) ever be invalid?

Yes. If the technical requirements are not followed exactly, then the prenuptial agreement will usually be held to be invalid. These requirements can be a little strict, such as having the document done at least 24 hours prior to the marriage, disclosing all assets, giving each party  the opportunity to have an attorney review the document, just to name a few.

Can I have my spouse agree that they will not be entitled to maintenance if we divorce?

Probably. This depends on the facts of the case. One of the requirements for a prenuptial agreement is that it must be an equitable agreement. This can be a little hard to understand and is very fact specific. For example, if one party becomes a world-famous neurosurgeon while the other stays home and raises all the kids and 25 years later they divorce, it would be unfair to put the non-doctor out on the street with nothing after all those years.

V.  Marital Property

What is non-marital property?

Non-marital property is the property that you bring into the marriage, inheritance assets someone leaves you in their will, or a gift to just you (not your spouse and you). If you divorce, you generally get to keep all of your non-marital property.

On the other hand, marital property is generally considered everything you acquire during the marriage and is divided equally if you divorce.

Who is responsible for paying for the family home after one person moves out of the house?

If you have a joint mortgage, meaning you are both on the note from the home, the bank will expect to be paid and they don’t care by whom.  While your credit may take a hit if you don’t pay, generally until the court issues a temporary order, neither of you “have” to pay.  It’s what we call the wild west during the early days of your divorce case, and you should plan and budget accordingly.

What items can I take with me when I move out of the house?

If you decide to leave the home and get divorced, there is no clear cut law on what you can and cannot take from the home.  Since most of the items are probably marital property, you are entitled to ½ them or at least ½ of the value.  The only restriction is that once the divorce is filed you cannot dispose of assets except under very limited circumstances.

What items are considered “marital property”?

Most of the items (and debt) that you acquire from the date you are married until the date of valuation (this is a technical term that is either the date of the pre-trial hearing OR whatever is more equitable) are usually divided equally.  This means the car, the home, retirement, or pension plans should be divided equally.  Remember, just because one person has their name on a title or asset, it doesn’t mean it is not marital property.

What if the down payment for the family home was with funds I had before the marriage?

This can get tricky, if you owned a home before the marriage and you haven’t co-mingled the funds by refinancing and taking all the equity, then you may be entitled to have that portion of the down payment to be non-marital. This can get a bit technical and remember if you are the one claiming the asset is non-marital, then you have the burden to prove it.

VI.  Divorce Mediation

What are the benefits of mediation?

Divorce mediation is very common in Minnesota. It’s usually faster and cheaper than going to trial and most cases settle during a good and properly prepared mediation session. Normally, both parties will have a lawyer present during mediation, and often times when we leave the mediation we have a signed agreement!

Can the mediator take sides?

The mediator is neutral and they have only one concern: to settle the case. They can’t advise you or the other party. This is important to keep in mind because some people have the belief that a mediator will try and divide the property or the kids in a fair manner, but that’s not what they are they for.

What if we cannot agree at mediation?

If you don’t settle the case during mediation, the mediator will notify the court and the court and your lawyer will usually set up a pre-trial hearing. This is the last chance to try and settle the case short of going to trial. Most cases do settle short of trial, either at ENE, mediation, or through some other alternative dispute resolution.

When is mediation appropriate?

Minnesota law indicates that unless there is physical abuse, the parties should attempt mediation. While most courts in Minnesota will not require you to mediate, they will strongly encourage it as it is so effective to resolve even the most unpleasant cases.

How much does it cost?

The short answer is a lot less than a trial. Typically, mediators charge from $150-$350 per hour. Some charge for travel and prep time, some do not. The thing to remember is that trial and trial preparation is what you are attempting to avoid as it can be incredibly expensive.

VII.  Unmarried Parents (Paternity)

Do fathers have any rights in Minnesota if they aren’t married to the mother?

The short answer is not really. Generally, if you are an unmarried father and you even signed the birth certificate at the hospital, you have very few rights until the court adjudicates you as the father of the child. This is different than if you are married and the child is born. If the child is born during the marriage, it’s legally presumed that you are the father.

Can an unwed mother leave the state with her child and not get the father’s permission?

Yes. As long as there has not been a motion to establish parenting time or custody, even if the father has signed a Recognition of Parentage, the mother can leave the state without obtaining either the court’s or the father’s permission.