Before the Divorce
In most situations, you will have to answer some difficult questions before engaging in the formal divorce process. The most fundamental question — which can involve various considerations — is whether you are ready to divorce your spouse. Situations occur where one spouse has the other served with divorce papers without any discussion, but in general, considerable conversation and soul-searching precede the decision to seek divorce.
Just a few of the many factors to consider are:
- Whether you believe the marriage is irreparably broken
- Whether this is a thoughtful decision or emotional knee-jerk reaction
- Whether you are prepared to share parenting time of your children
- Why you have decided now is the right time for a divorce
- Whether you are emotionally prepared for the conflict that might accompany the divorce process
- Whether you want to separate legal or live separately during the process
There are typically financial considerations that accompany a decision for one spouse to leave the marital home while a divorce is pending. You will need to decide if you want to file for a legal separation before you divorce. One of our attorneys can discuss this further with you, but legal separation is not a necessary step before filing for divorce in Minnesota. Often a legal separation will simply prolong the time before you are divorced and cost you and your spouse additional money. Some couples legally separate for religious reasons.
Once You Have Decided to File or After You Have Been Served
The documents that must be filed as part of a divorce are somewhat extensive, and with or without representation, you will need to gather all the required information. Information you will need includes:
- Full legal names and current addresses of you and your spouse
- Date you or your spouse moved from the marital home
- Dates of birth and Social Security numbers for you and your spouse
- Full legal names, dates of birth and Social Security numbers for all children of the marriage
- Date and location you were married, including the county
Documents you will need include:
- Income documents for both spouses, including tax filings and pay stubs, going back at least three years
- Copies of a prenuptial agreement, if one exists
- Copies of divorce judgments for either spouse
- A list of marital assets and debts
- Any contracts for joint credit, including mortgages
- Bank account numbers and statements of both spouses held jointly or separately
You will need all this information, and possibly additional information if you are attempting to file on your own. An attorney will need copies of these documents, and you should retain the originals in a secure location. Your spouse will be required to compile the same information.
Divorces in Minnesota, and many other states, are considered “no-fault.” This means that, in considering a divorce, the court will not consider who was responsible for the failure of the marriage. Therefore, such information will not be included in the divorce filings. Either party tells the court through his or her legal pleadings that there are “irreconcilable differences” between you and your spouse that necessitate divorce.
The Summons and Petition for Divorce
If your spouse has already had someone serve you with divorce papers, you will have received a summons. This is a document that will be provided with the petition for divorce that will instruct you how long you have to file an answer to the petition. If you are the one initiating the divorce, you will have a summons and petition for divorce served upon your spouse.
These are the documents that begin the divorce process, and the spouse who files the original petition will set forth his or her requests for how he or she wants the court to handle certain matters that a divorce judgment decided. The petition will indicate how you (or your spouse) want the court to divide the marital property and debts, your requests regarding custody and visitation (also called parenting time) and sets forth any child support or spousal support (sometimes called alimony) being requested.
Whichever spouse received the summons will be required to file a response to the petition within the time set forth within the summons. Within this response, you (or your spouse) will respond to each request you have made to the court as to whether he or she agrees with your request, or if not, how he or she wants the court to decide the same issue. This response must be filed with the court, and a copy must be sent to the other party or his or her attorney.
Do You Need Representation by an Attorney?
The decision of whether to hire an attorney is best made before you file any documents. There are various factors to consider when making this decision. If you know the other party is represented, it can often feel like the playing feel is not level if you too do not obtain representation. Couples sometimes want to attempt a divorce on their own, but there are a variety of problems that can occur. You may forget to include certain assets or debts, fail to understand all of your options, and even draft a divorce judgment that a court cannot legally enforce. The years of experience a lawyer brings to a divorce is extremely valuable and often ultimately saves time and heartache in the long run.
Discovery is the legal name for the process that occurs after the petition and response are filed where both parties have the right to seek information from the opposing party. This is one stage of the process where an attorney is particularly valuable. Non-attorneys are typically unaware of the variety of options they have for securing information from the other party. There will be an initial exchange of documents, and then each side will have the chance to request additional information or documentation that he or she needs to make his or her case. This can be an extended process that involves multiple document exchanges and, in some cases, depositions. A deposition allows one party to take sworn testimony from the opposing party and other relevant witnesses.
If the parties — and their attorneys — cannot work out the details of the divorce, then the parties must go before a judge in divorce court to have the court decide the items that the parties could not resolve on their own. In general, parties are more satisfied when they reach a compromise on their own outside of court than when a third party makes a decision for them.
The Divorce Judgment
Once all the matters within the divorce have been decided by the parties or the judge, a final divorce judgment, or decree, will be drafted and signed by the judge. If the parties resolved the case by settlement, they will typically sign as well to signify their agreement with the terms set forth in the judgment. When a judge makes the final decision, the parties’ signatures are not necessary because their agreement is irrelevant. The parties are then bound by the terms of the judgment from the date it is signed. If one party refuses to follow the terms of the decree, the offended party can bring the offending party back before the judge for enforcement. Various penalties can result from the failure to follow a judgment.
The attorneys of Sheridan and Dulas, P.A., have experience with Minnesota divorces involving a wide range of facts. No case is too complex. We offer a free initial consultation to help work through some of the issues with the Minnesota divorce process discussed above. Call us at 651-686-8800 or schedule an appointment.