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Minnesota Divorce Frequently Asked Questions
This list of frequently asked questions and answers on issues of separation and divorce has been developed by Divorce Headquarters in conjunction with our professional members in response to the numerous requests for information we have received from our site visitors. Divorce
Can I Argue Adultery? Does Minnesota have a Divorce Waiting Period? How Do I Prove My Spouse is Crazy? Should I Discuss this with the Children? Should I Empty the Joint Bank Account? Should I Get a New Lawyer? Should I Move Out, And If So, How? What Can I Do to Keep Costs Down? When Does My Paycheck Stop Being Joint? The authors and creators and any and all persons or entities involved in any way in preparation of the website known as Divorce Headquarters and/or divorcehq.com disclaim all responsibility for the legal effects or consequences of the interpretation of the information provided. Individuals intending to use divorcehq.com as an information resource should seek advice from family law professionals and experts familiar with the laws of their state. This website is not intended to provide legal advice and should not be relied on for that purpose. |
THIS WEB SITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY Do not take any actions based upon the information contained within this web site without first consulting an attorney or an appropriate professional depending upon the content of the information. |
Return At What Age May the Child Decide Where He Wants to Live? |
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In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child's preference carries, whether in the initial custody determination or in the context of a motion to modify custody (See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)]). Still, the child's preference alone is an insufficient basis for modification of custody (Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old's preference to change custody)). There must be a showing of endangerment, at least on an emotional level, in order to modify custody (Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court's denial of evidentiary hearing in case involving emotional abuse) (citation omitted)). The child's preference is an important factor and often a sine qua non of a showing of endangerment.
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In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child's preference carries, whether in the initial custody determination or in the context of a motion to modify custody (See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)]). Still, the child's preference alone is an insufficient basis for modification of custody (Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old's preference to change custody)). There must be a showing of endangerment, at least on an emotional level, in order to modify custody (Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court's denial of evidentiary hearing in case involving emotional abuse) (citation omitted)). The child's preference is an important factor and often a sine qua non of a showing of endangerment.
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Return Is There Bias Against Fathers? |
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Often times fathers come into my office thinking that a fight for custody is futile because of bias. Conversely, mothers often make the mistake of thinking that an award of custody to the mother is virtually guaranteed. Neither is true.
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Return May I Move the Children Within the State? |
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Generally speaking, no Court Order is required for the sole physical custodian to move the residence of children within the state. However, if the move as a practical matter would necessitate a change in the court-ordered parenting time schedule, or if the parties have joint legal custody and the move would involve a change of schools, then it is wise to bring a motion at or before the time of the move.
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Return Who Gets the Kids While We Wait to Go to Court? |
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For married parties with children born during the marriage, both parties have joint legal and physical custody until the Court orders otherwise. Thus, either parent has the right to take the children, and the other parent has the right to take them back, and so forth. This can lead to a lot of game-playing and tugs-o-war which are obviously harmful to the children.
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Return Can I Argue Adultery? |
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In equal numbers, prospective clients come to me either excited about a perceived ace-in-the-hole because of the other spouse's adultery, or worried about his or her own adultery. Neither attitude is warranted. The Courts could care less about anyone's adultery. Half the divorces they see involve adultery. In fact, raising the issue invariably backfires, making the accuser appear obsessive and jealous.
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Return Does Minnesota have a Divorce Waiting Period? |
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In order to commence a divorce in Minnesota, one or the other spouse must be a resident or domiciliary of Minnesota for 6 months immediately preceding commencement of the divorce (Minnesota Statute section 518.07).
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Return How Do I Prove My Spouse is Crazy? |
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From time to time a client will come to me, excited that he or she has figured out a sure-fire way to win custody, because he or she has personally diagnosed the spouse with Borderline Personality Disorder (BPD), Parental Alienation Syndrome (PAS), or some other mental illness.
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Return Should I Discuss this with the Children? |
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The generally accepted view of the courts is that children are to be kept out of the divorce as much as possible. Discussions of court proceedings with the children are discouraged.
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Return Should I Empty the Joint Bank Account? |
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Emptying the joint bank checking or savings account in anticipation of divorce would ordinarily be frowned upon, unless you had a very justifiable reason. Be warned, however, that your spouse may beat you to it. I've seen joint bank accounts cleaned out by the other party more than once, and many times there is unapproved spending by the other spouse as the divorce approaches. All things being equal, I generally recommend taking half of the joint account money and depositing it into an individual account. If you trust your spouse enough to keep your accounts joint while the divorce proceeds, I respect that, but don't say you weren't warned.
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Return Should I Get a New Lawyer? |
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It can be difficult for a client to know whether his or her lawyer is performing well or not. Sometimes even the best of lawyers does not achieve the desired result, and it may be due to a difficult set of facts, a bad judge and/or custody evaluator or guardian ad litem, or unrealistic expectations. There are some clear indications of bad lawyering, however, which are objectively obvious:
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Return Should I Move Out, And If So, How? |
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Clients often ask whether they should move out of the marital home prior to or during the commencement of divorce proceedings. The answer is that it depends. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in the proceedings, I advise against it. Although no legal precedent is created by moving out, the lawyer for the remaining occupant routinely argues that:
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Return What Can I Do to Keep Costs Down? |
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Return When Does My Paycheck Stop Being Joint? |
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The date on which earnings (including retirement contributions and other income) becomes separate property again, is the so-called "valuation date" (Minn. Stat. § 518.54, Subd. 5). The valuation date is the date of the initially scheduled prehearing settlement conference, unless the parties agree to a different date, or the court finds that a different date is fair and equitable (Minn. Stat. § 518.58, Subd. 1). In my experience, the Court seldom exercises its discretion to use a different date. One situation warranting a different date is where the parties have been separated for years or at least several months prior to commencement of the divorce, and have been living separately, with separate accounts, insurance, bills, etc., during the separation period.
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