2.A. Basic Facts. The Divorce Process:
What to Expect.
In Minnesota, a divorce, or
as it is called in the court system, “a dissolution
of marriage”, is started when you notify your spouse of
your intention to seek a divorce. As with many other parts of the process,
this notification can be either formal or informal. The formal way
to notify your spouse of a dissolution is to give the other party
a Summons
and Petition
for Dissolution of Marriage.
Petitioning for Divorce:
A Petition
is a document that describes certain basic facts about you and your
family and tells your spouse, usually in very general terms, what it
is you are seeking from the divorce. (Such as custody of the children,
child support, spousal maintenance, an equal division of property, etc.)
The party who wishes to start the divorce, called the Petitioner,
usually prepares the Petition.
In these instances, the other party is referred to as the Respondent.
In some cases where both parties wish to start the divorce together,
the parties can file a Joint
Petition.
Serving a Summons:
The Summons,
which always accompanies the Petition,
is a document that, among other things, tells your spouse that he or
she has thirty days to respond to the Petition.
(For a summary of other items included in the Summons,
click on the word summons
anywhere on the site. The requirement that your spouse respond
to the Petition within thirty-days only occurs if you choose to have
the thirty day requirement and if you actually serve the document on
your spouse.
Serving the Summons and Petition normally means having someone
other than yourself deliver the Summons and Petition to your spouse.
In a more formal proceeding, the Summons and Petition is presented to
your spouse by a process server. In a more informal proceeding, the
Summons and Petition can be mailed to your spouse, with an Admission
of Service document that allows your spouse to waive personal
service of the Summons and Petition. In either event, service of the
Petition or delivery of the Summons and Petition is simply a way of
notifying your spouse that you intend to proceed with the divorce.
“Filing” for
divorce: If you wish to notify the Court that you wish to proceed
with the dissolution, you must file the Summons and Petition with the
Court Administrator in your county. (While you may choose to delay
filing if you do not wish to have the court involved, the documents
will eventually need to be filed since the Court needs to approve the
final divorce papers).
Where to file:
Before filing, you must choose the proper state and county to file your
papers. In order to bring the divorce in Minnesota, either you or your
spouse must have resided in Minnesota for at least six months prior
to service and filing of the Summons
and Petition.
Normally, divorces must occur in the county in which either you or your
spouse reside.
Resolving the Divorce
Issues: Once the divorce is started, the process continues
until a conclusion is reached about all of the issues. This can take
as little as a few weeks or as long as several years, depending, in
part, on the process you choose. There are many different alternatives
available to bring the divorce to a conclusion. These avenues
are explored, in great length, throughout this website. For an examination
of the benefits offered by these alternatives, click
here. For a
discussion of all of the alternatives available, click here.
Trial or Settlement:
Regardless of the method chosen, the divorce process will end in either
an agreement or a trial. Generally, less than 2% of all cases go to
trial. Consequently, the overwhelming number of cases end through an
agreement between the spouses. This is important to remember since,
at the early stages of the dissolution, it may seem impossible to imagine
reaching an agreement with your spouse. Yet almost all couples eventually
reach an agreement with their spouse. Among the most important decisions
made at the beginning of the divorce, is which process to use that will
help you reach an agreement with your spouse in the most effective manner.
Information Exchange:
Regardless of the process used, reaching an agreement often involves
at least two stages. The first stage, which is referred to as “information
exchange or discovery”, is simply making sure that you
and your spouse have all the information necessary to negotiate the
issues in your divorce. For a summary of the issues that often arise
in a divorce and the types of information that is normally gathered
to help make those decisions, click here.
Formal vs. Informal Information
Gathering: As with other choices, you may choose either a very
formal method of gathering information or an informal method. Informal
methods of gathering information can be something as simple as you and
your spouse helping each other gather information, or gathering information
informally through an attorney by using letters and phone calls and
exchanging information voluntarily. As might be expected, these methods
are less expensive and often quicker, but rely upon the cooperation
of both parties. If it is not possible to have the cooperation of both
parties and their attorneys in using an informal process, you can use
a formal process, sometimes referred to as “discovery”
to help you gather information.
Use of Experts:
Often experts are used in the divorce process to help resolve anything
from parenting issues to property and income issues. An important
decision that you will make during the process is whether to use neutral
experts or whether you and your spouse will each choose your
own experts.
Reaching an Agreement:
As you gather information and determine the values of assets, income
and expenses, you will be able to begin the process of trying to reach
an agreement. For a summary of the many methods used for reaching an
agreement, click here.
“How long will it
take?”: Generally, the length of time that a divorce takes
depends on how much time will be spent exchanging information and working
towards an agreement. Some people are able to do this in as little
as a few weeks, while others can take as much as two years. The length
of time of the dissolution can depend pretty much on you and your spouse,
the methods of resolution that you choose and the professionals you
choose to work with. For a discussion of how alternate methods
can reduce the time of the divorce process, click here.
How much will it
cost? The cost of the dissolution
will depend on the alternatives
that you choose. For an overview of the estimated costs of various
alternatives, click here.
Temporary Agreements:
Often during the process of trying to reach an agreement, you and your
spouse will reach temporary
agreements. These temporary agreements can be made formal and
drafted into formal stipulations,
Court orders,
or they can be done informally. Temporary agreements are simply a way
of allowing you and your family to maintain your life in an orderly
fashion, while you are working towards a permanent agreement.
“Permanent”
agreements: A “permanent agreement” is one that simply
allows you to obtain a final dissolution. The formal name for a permanent
agreement in a dissolution action is normally a Marital
Termination Agreement. A Marital Termination Agreement is a
lengthy document which describes all of the critical facts relating
to the divorce and states, with significant detail, all of the areas
in which you and your spouse are in agreement. This document is signed
by you and your spouse, generally in the presence of a notary public.
In addition, if you are represented by an attorney, the attorneys must
sign the Marital Termination Agreement as well. In fact, if you are
not represented by an attorney, it is necessary that the party who is
not represented by an attorney sign a Waiver
of Counsel. The Marital Termination Agreement is a critical
document in that it binds both you and your spouse to your agreement.
However, the document is not complete, or fully binding, until it has
been approved by the Court in a divorce
decree.
Divorce decrees:
This divorce decree, which is more formally known as the Findings of
Fact, Conclusions of Law, Order for Judgment and Judgment and Decree,
is a document signed by the Judge or Referee that incorporates all of
the terms of your Marital Termination Agreement, if you have reached
an agreement in the process.
Trials: In those
few cases where an agreement is not reached, you and your spouse would
proceed to a full trial, including presentation of witnesses and testimony,
and the Judge would issue a divorce decree after hearing all of the
evidence. In either case, it is actually the issuance and filing of
that divorce decree that ends the divorce process.
After the Divorce:
However, one of the facts that people sometimes fail to understand
in a divorce is that a divorce does not always end at the time of the
issuance of the decree, especially if there are young children involved.
In many cases, the issues in the divorce will last many years where
there are young children involved. The divorce decree
simply sets a framework to help you resolve the current issues and to
resolve future issues. Many issues after the divorce can become modified
by the parties to adjust to changes in circumstances by the parties.
These may include changes in child support, spousal maintenance, custody
or various other matters. As with the divorce itself, these changes
can occur by agreement, or by Court order. This process of making changes
after the divorce is referred to by attorneys as the “post-dissolution”
process. Also included in the post dissolution process are attempts
to enforce the decree if either you or your spouse fail to honor all
the terms set forth in your final judgment.
Staying out of court
after the divorce: Naturally, both parties, and certainly the
children, are better off when the post dissolution issues are kept to
a minimum, since this adds to the acrimony and expense of a dissolution.
For these reasons, it is critical, not just to reach an agreement at
the time of the dissolution, but to reach an agreement that will eliminate
as many future complications as possible. When the parties reach their
agreement in an alternate
process, they generally do not have difficulty with modification
of enforcement of their agreement. On the other hand, hard fought divorces,
either those that end in trial or through very forceful negotiations,
often end in agreements or orders that either are difficult to enforce
or constantly need to be amended. Consequently, it is critical to look
not just at “getting done” with the divorce, but getting finished
in a manner that will be successful for you and your family for years
to come.
