Marriage and Divorce Overview

1. Questions about Marriage

1. Questions about Marriage

Governed by Minn. Stat. 517.01

Is the marriage void?

A void marriage is absolutely prohibited and is void without any decree of dissolution or other legal proceeding.  The prohibited marriages are as follows:

1. Marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final;

2. Marriage between an ancestor and a descendant or between siblings, whether the relationship is by whole blood, half blood or adoption; and

3. Marriage between an uncle or aunt and a niece or nephew, or first cousins, whether the relationship is by whole blood, half blood or adoption;

Is the marriage voidable?

A voidable marriage is valid until an annulment is affirmatively sought and granted.  Voidable marriages are as follows:

1. Where one party lacked capacity to consent to the marriage at the time it was solemnized because:

    a. The party had a mental incapacity or infirmity of which the other party was unaware

    b. The party was under the influence of alcohol, drugs or other incapacitating substances; or

    c. The party’s consent was obtained by force or fraud and there was no subsequent voluntary cohabitation of the parties;

2. Where one party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not know of the incapacity at the time the marriage was solemnized; or

3. Where a party was not of the legal age to marry

When can a marriage be annulled?

A court will grant an annulment if the marriage is deemed a voidable marriage.  There are additional requirements and specified times for each basis for a voidable marriage.  Please reference the statute.

See Minn. Stat. 518.05.

2. Types of Proceedings Affecting Married or Cohabiting Persons

2. Types of Proceedings Affecting Married or Cohabiting Persons

Dissolution of Marriage (Divorce)

A decree of dissolution completely terminates the martial relationship of both parties.  The court apportions property, maintenance and support and decides all other issues pertaining between the parties as part of its decree.

See Minn. Stat. 518.002.

Legal Separation

A legal separation is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship.  The court does not make a division of marital property in a proceeding for legal separation.  A legal separation does not terminate the marital status of the parties.  To be granted, the court need only find that one or both parties is in need of a legal separation. The procedures for obtaining a legal separation are identical to the procedures in a dissolution proceeding.

See Minn. Stat. 518.06.

Annulment

An annulment proceeding is conducted in the same manner as a dissolution or legal separation. On due proof of the nullity of a marriage, the court declares the marriage null and void. The court has the same authority as it does in a dissolution proceeding to make determinations relating to property rights of the spouses, maintenance, support, and custody of children.

See Minn. Stat. 518.03.

Cohabitation Agreements

Only an express written contract is enforceable as to terms concerning the property and financial relations of the parties who live together in contemplation of sexual relations out of wedlock.  The “live in” contract may be entered into either before or during the period of cohabitation.  It must qualify as a legal contract.  The court will not hear a claim by an individual without a contract complying with statutory requirements.  An oral agreement is not enforceable.  There is significant case law surrounding these issues.

See Minn. Stat. 513.075.

Actions Under the Putative-Spouse Status

If a person is cohabiting with someone in the good faith belief that they are legally married, that person has rights as a putative spouse, regardless of whether the marriage is void or voidable.  This means they have the same rights as a legal spouse in a dissolution proceeding.  However the putative spouse cannot acquire further rights after obtaining knowledge that the marriage is not legal.

See Minn. Stat. 518.055.

Common Law Marriages

Common-law marriages between Minnesota residents are not recognized in Minnesota.  However, the Minnesota courts do recognize a common-law marriage if it was established in a state that recognizes common-law marriage, and in that state the parties establish a public reputation of being married.  There must be:

  a. Competency to enter into a marriage;

  b. A present mutual consent to assume the marital relationship; and

  c. Cohabitation and reputation in a community as husband and wife.

See Minn. Stat. 517.01.

3. Initiating the Proceeding

3. Initiating the Proceeding

The various proceedings, namely, dissolution, legal separation, and annulment, are all governed by the same procedural rules.  Many of these rules are set out in the statutes.  Other procedural rules are set out in the Minnesota Rules of Civil Procedure and the General Rules of Practice for the District Courts.

See Minn. Gen. R. Prac. 301.

Jurisdiction; Residency Requirement

At least one of the parties must be a resident or domiciliary of Minnesota for at least 180 days immediately preceding the commencement of the proceeding.

See Minn. Stat. 518.07.

Venue

A proceeding for dissolution or legal separation must be brought in the county where either party is domiciled.  If jurisdiction is premised on one of the parties being a member of the armed forces stationed in Minnesota, venue is proper in the county where the member is stationed.  The court may transfer venue to another county if the parties consent, if the court finds that an impartial hearing cannot be had in the county where the proceedings were commenced, or if the convenience of the parties or the ends of justice would be promoted by the change.

See Minn. Stat. 518.09.

Service of Process

A Proceeding Affecting Marriage is commenced by service of a summons and petition or other means authorized by statute upon the person of the other party.  This precludes substitute service or service by mail.  Service can be accomplished by:

    a. Personal service (by serving the summons and petition upon the person of the party to be served),

    b. Admission/Acknowledgment (when the party to be served signs an admission of service or acknowledges service as permitted in Minn. R. Civ. P. 4.05); or

    c. Alternate means (by alternate means authorized by statute), or

    d. Publication (permitted only upon an order of the court). Minn. Stat. 518.11(c)

See Minn. Stat. 518.09, 518.11, Minn. Gen. R. Prac. 302.01(a)

Summons and Petition

These are the initial pleadings in a proceeding for dissolution, legal separation or annulment.  The forms are available at http://mncourts.gov/GetForms.aspx?c=15.  The information required by statute is accounted for in the forms.

    a. Joint Petition (Minn. Gen. R. Prac. 302.01 (b)(1)):  If a joint petition is filed no summons is required, but both parties must sign the verified joint petition.  The rules provide that parties may proceed using a joint petition, agreement, and judgment and decree for marriage dissolution if they agree on all issues.

See Minn. Stat. 518.005.

Response

The respondent has thirty days in which to answer a petition.  The respondent may interpose an answer or an answer and counterpetition.  Forms are available here:  http://mncourts.gov/GetForms.aspx?c=15.

See Minn. Stat. 518.12.

Parent Education Sessions

In any action under chapter 518 or under the paternity statute where custody or visitation is contested, the parents of a minor child are required to attend a minimum of eight hours in an orientation and education program that meets the minimum standards set by the supreme court.  Unless otherwise ordered by the court, participation in a parent education program must begin within 30 days after the first filing with the court or as soon as practicable after that time based on the reasonable availability of classes for the program for the parent.

See Minn. Stat. 518.157.

Scheduling Statement or Initial Case Management Statement

Except where the court orders the parties to use an Initial Case Management Conference (ICMC), within 60 days after the initial filing in a case, or sooner if the court requires, the parties shall file a Scheduling Statement that substantially conforms to the form developed by the state court administrator.

    a. If the county uses ICMCs, the parties will be required to complete an Initial Case Conference Data Sheet to provide to the court in advance of the ICMC.

See Minn. Gen. R. Prac. 304.02(a).

Alternative Dispute Resolution Options

a. Who must participate:  All family law matters in district court are subject to the ADR processes established in Rule 114 for all civil cases, with the exception of the following matters:

    1. Actions enumerated in chapter 518B (Domestic Abuse Act)

    2. Contempt Actions

    3. Maintenance, support, and parentage actions when the public agency responsible for child support enforcement is a party or is providing services to a party with respect to the action.

    4. The court may not require the parties to participate in any “facilitative process” where one of the parties claims to be the victim of domestic abuse by the other party or where the court determines there is probable cause that one of the parties or a child of the parties has been physically abused or threatened with physical abuse by the other party.

b. Types of ADR Processes (Minn. Gen. R. Prac. 114.02(a))  There are multiple, refer to statute for a complete list.  If a jurisdiction utilizes the ICMC process, it is at this hearing that the parties will discuss and agree upon attempting ADR options.  The most common are the following:

    1. Early Neutral Evaluation (ENE):  A forum in which the parties’ and their attorneys present the core of the dispute to neutral evaluator(s).  The evaluators are selected from a roster of qualified and trained neutrals.  The neutral then gives an assessment of the strengths and weaknesses of the cases.  The evaluator(s) may then facilitate discussions for a mediated agreement.

    2. Mediation (Minn. Stat. 518.619):  a forum in which a neutral third party facilitates communication between parties to promote settlement.  A mediator may not impose his or her own judgment over that of the parties.

See Minn. Gen. R. Prac. 310.01.

Scheduling Order

Within 30 days after the expiration of the time for filing an Initial Case Management Statement, the court will enter its scheduling order.  The court may issue the order after either a telephone or in-court conference, or without a conference or hearing if none is needed.  Scheduling orders may include dates for completion of discovery, motions, evaluations, pretrials or trials.

See Minn. Gen. R. Prac. 304.03(a).

Pretrial Conferences

Each party is required to complete a Parenting/Financial Disclosure statement, which must be served on all parties and filed with the court at least seven days prior to the date of the pretrial conference.  The statement must be in the form developed by the state court administrator.

See Minn. Gen. R. Prac. 305.01.

4. Temporary Proceedings; Motion Practice

4. Temporary Proceedings; Motion Practice

When to bring a motion for temporary relief

At any time during the pendency of a proceeding for dissolution, legal separation, or custody, a motion for temporary relief may be brought by either party; after a dissolution, a motion for disposition of property, maintenance, or child support may be brought by either party.  In some jurisdictions, temporary motion actions may not be brought until after the parties have participated in an Initial Case Management Conference which informs the parties about the option to use an alternative dispute resolution process, such as Early Neutral Evaluation, as a way to resolve the matter between the parties. If this is not available in a jurisdiction, it is usually a good idea to obtain a temporary order form the court on such important issues as custody, visitation, child support and maintenance because most dissolution and custody proceedings are not resolved until sometime after the commencement of the proceeding (6 months to a year on average).

See Minn. Stat. 518.131.

Scheduling and Notice of Motions

A party who obtains a date and time for hearing a motion must promptly give written notice of the hearing date and time, name of judicial officer, and primary issues to be addressed.  Motions must be filed and received by the other party at least 14 days before the date of the hearing.  All responsive pleadings shall be mailed to the other party or filed with the court no later than five days prior to the scheduled hearing.  Responses raising new issues must be served and filed at least ten days prior to the hearing.

See Minn. Gen. R. Practice 303.01 and 303.02.

Pleadings

The pleadings to bring a motion for temporary relief may include the following:

    a. Notice of Motion and Motion

    b. Application for Temporary Relief (when financial relief is requested)

    c. Affidavits and Exhibits

    d. Order to Show Cause; and (used in limited circumstances)

    e. Memorandum of Law

See Minn. Gen. R. Practice 303.01 and 303.02.

Relief available in Temporary Proceedings

The court can grant a temporary order over the following matters:

    a. Temporary custody and parenting time regarding the minor children of the parties;

    b. Temporary child support;

    c. Temporary spousal maintenance;

    d. Temporary attorneys’ fees, costs, and disbursements;

    e. Temporary exclusive or nonexclusive use of the homestead, furniture, household goods; automobiles, and other property of the parties;

    f. Restraining of one or both parties from transferring, encumbering, concealing, or disposing of property except in the usual course of business or for the necessities of life;

    g. Restraint of parties from harassing, vilifying, mistreating, molesting, disturbing the peace, or restraining the liberty of the other party or the children of the parties;

    h. Restraint of one or both parties from removing any minor child of the parties from the jurisdiction of the court;

    i. Exclusion of a party from the family home or from the home of the other party;

    j. Any other order that will facilitate the just and speedy disposition of the proceeding or will protect the parties or their children from physical or emotional harm.

5. Order to Show Cause

5. Order to Show Cause

In General

An order to show cause may be used in temporary proceedings and under limited circumstances.  The rules of family court provide that an order to show cause may not be used to grant ex parte relief, except in situations permitted under the rules.  Relief will only be requested by a motion with an affidavit. There are five possible functions:

    a. It may require the personal appearance of the other party at the temporary hearing;

    b. It may grant ex parte relief;

    c. It may include temporary restraining orders;

    d. It may compel the production of certain evidence; and

    e. It may shorten the time period for serving and filing the motion pleadings.

Ex Parte and Emergency Relief

The court may grant emergency relief if the requirements of the rule are met and if emergency relief is sought ex parte, the party seeking the relief must demonstrate compliance with the applicable rule. 

    a. Include Order:  The party seeking emergency relief must present a proposed order to the court.

    b. Notice:  The party seeking emergency relief must serve the motion and affidavit, including notice of the time and place where the motion will be heard, on the party or counsel, unless:

        i. The party provides a written statement that a good faith effort to contact the other party or counsel has been unsuccessful or

        ii. The supporting documents show good cause why notice should not be required and the court waives the notice requirement.

See Minn. G. R. Prac. 303.04.

Restraining Orders

An order to show cause restrains the other party from disposing of or hiding assets, canceling or changing the beneficiaries of medical or life insurance policies, or molesting, vilifying or harassing the moving party or any minor child.

    a. A restraining order excluding a party from the parties’ family home may be issued only on the court’s finding of immediate danger of physical harm to the other party or the children of either party; and a restraining order denying visitation to a party or granting custody of the minor children of the parties may be issued only on the court’s finding of immediate danger of physical harm to the minor children of the parties.

See Minn. Stat. 518.091.