Frequently Asked
Questions About
Divorce

REMEMBER, THIS INFORMATION RELATES TO MINNESOTA LAW

  • What is an annulment? Many people believe that annulment is common for short marriages, and that it is a proceeding that is easier and less expensive than divorce. Actually, annulment is more complicated than divorce. Annulment is a procedure to establish that a marriage was entered into improperly. For example, if a person was still married to someone else at the time of a marriage, that second marriage would be void. Other grounds for annulment are: marriage entered into under fraud or duress, or under the influence of substances; marriage while under age; or marriage with a partner who is incapable of having sexual relations. There are often strict time requirements as well. So in an annulment proceeding, a hearing is required to prove that the marriage should be nullified, whereas in divorce without children, no hearing is required unless the parties are in dispute. Different considerations apply when a religious annulment is sought through a church. 518.02 , 518.01
  • Do I need to go to court to get a divorce? That depends. There are three basic ways to get a divorce: by default (the dirt road), by agreement (the highway), or by trial (the maze). Divorce by default takes place when the party who is served with papers fails to respond within the time required, usually 30 days. Divorce by agreement, sometimes called "stipulation," requires both parties to enter into an agreement which settles all issues relating to the divorce. Sometimes an agreement is signed on the first day, sometimes not until the case is just about to be put before the judge. In Minnesota, settlement is encouraged, and parties are required to go through procedures before they are allowed to have a trial. If they are deadlocked on some issue, then a judge will decide their case in a formal trial with testimony, cross-examination, and rules of evidence. And if somebody is unhappy with the court's decision, he or she can appeal to the Minnesota Court of Appeals. If there are no children involved and the case is resolved by default or by agreement, no court appearance is necessary. If there are children, a court appearance is required in a default situation, or upon agreement if only one party is represented by an attorney.

  • How much child support will I pay or receive? Minnesota child support guidelines changed on January, 2007. 518A.25 and after Here is the website for the child support calculator. The following information applies, but only in situations where there is a normal custody arrangement: the children live with one parent most of the time. If this is not your situation, you should consult with an attorney.There are three parts of child support. First, there is the basic support, which is an amount determined by the total income of the parties and then apportioned between them according to their individual incomes. Second, there is medical and dental support, which includes medical insurance and contribution to out-of-pocket expenses. Third, there is contribution to day care costs. Here are some other points to remember about child support:
Remember that the average month has 4.33 weeks. When you calculate monthly income from weekly or bi-weekly paychecks, you need to take the extra third of a week into account. 518A.29(d)

What is included in income? Any kind of periodic income will be included in the support calculation. Payments in kind, for example a reduction in rent for caretaking services, will also be included. The value of company cars and other benefits can also be included. 518A.29 (c)

What about overtime and part-time income? Yes, overtime is counted. Generally, the courts will average overtime over the last year or so to try to get an estimate as to what future overtime will be. It is common for judges to hear "yes we had a lot of overtime last year, but this year there isn't going to be any." Unless you can prove that with an independent source, the judge will probably be unconvinced. The exception to the overtime and part-time income rule is this: if you started the overtime or part-time work after the petition was served, and you are paid by the hour, then the court can disregard that overtime or part-time income and set child support based on the guidelines for your net income for regular hours. 518A.29(b)

If you have unusual income, such as income from an injury settlement, you should consult an attorney.

The court can also impute "potential" income, which means estimate an appropriate amount of income based on the obligor's ability to pay. For example, if someone making $50,000 per year quits his job and takes a job paying $25,000 per year, the court can impute income of $50,000. The obligor who quit his job would have to offer some very persuasive reasons why he can no longer earn $50,000 per year. See 518A.32

As you can see, child support can be very complicated. There are many gray areas. If you will be paying or receiving child support for many years, you would be foolish not to get some advice from an expert. What you pay an attorney to evaluate your situation may be a drop in the bucket compared to the money you save or the extra money you receive in child support.

If my spouse gets to keep our house, does that prevent me from buying a new house and getting a mortgage? What is my liability on the existing mortgage loan? According to Tom Carmody of Wintrust Mortgage, if the divorce decree awards the house and the responsibility for its payment to one spouse, the other spouse is able to immediately purchase a new home and apply for a new mortgage loan without the current mortgage’s monthly payment counted against them for qualification purposes. However, the existing mortgage holder still considers both parties as liable for the mortgage payments on the existing house. Failure to pay the payment on time could affect the credit of both individuals. This liability of the existing mortgage can only be removed by refinancing the loan, doing a full assumption, or by the sale of the property. For more information, call Tom at 952-915-5378.

So I'm still "liable." What if he doesn’t pay the mortgage? Won’t they come after me? Possible, but highly unlikely. If he doesn’t pay, the mortgage company will serve a notice, then commence foreclosure. In Minnesota, there are two types of foreclosure, foreclosure by advertisement (Chapter 580) and foreclosure by action (Chapter 581). Under §582.30 Subd. 2, a deficiency judgment is not allowed (meaning they won't come after you personally) if foreclosure is by advertisement and has a redemption period of six months or less. In reality, the vast, vast majority of foreclosures are in that category, because that method is the quickest and cheapest way to get the property back for the mortgage company. Longer redemption periods exist for some agricultural property and properties with 1/3 of the original mortgage paid down. §580.23 Subd. 2. The rare foreclosure by action takes place when a huge deficiency is expected, e.g. an extremely expensive home has been trashed or the market value has sunk.

I'm still married. Can I get a mortgage without my spouse? Maybe. We usually refer to our house payments as our "mortgage," when actually we are paying on a "Note." The mortgage is a separate document that gives the lender the right to take the house back by foreclosure if we don't pay the Note. If you qualify by income and credit rating to buy a property without your spouse, you can sign a Note--but the lender may ask that your spouse sign the Mortgage. This will not obligate your spouse to pay anything. It will protect the lender if it needs to foreclose. We say in Minnesota that it takes one spouse to buy, but both to sell. So the lender will probably want the added security of having your spouse sign the document that allows them to foreclose if you don't pay the Note.

MYTHS ABOUT FAMILY LAW

MYTH: “The court will order everything to be sold and split.”

Usually the court will apportion property between the parties, unless both parties want something sold or there aren’t enough liquid assets to make a fair division.

MYTH: “I’m going to take him for everything he’s got.”

Minnesota is a no-fault divorce state, and the court does not punish parties for personal misbehavior by giving them less property. Under rare circumstances, the court may award less property to a party who has engaged in financial misbehavior.

MYTH: “It’s in my name so she can’t touch it.”

The court has the authority to award property owned by either party to the other. The court may choose not to do this if one party owned something before the marriage or if it was given to or inherited by that party as an individual. The court is more concerned with when or how property was acquired rather than whose name it is in.

MYTH: “When the kids get to be 14, they can decide where to live.”

The age where the court loses the power to tell a child where to live is 18. But realistically, it is hard to tell some teenagers where to live.

MYTH: “It’s his word against mine. The court can’t do anything.”

The court can decide who is telling the truth and rule accordingly.

GAMES PARENTS PLAY

Competing with the other parent

Bribing the child

Asking the child to be a spy

Asking the child to keep secrets

Making the child the parent

Ridiculing the other parent

Sending hostile messages with the child

Using the child or his things as a hostage.

WAYS TO RESPOND

Never reward stupid behavior with anger.

Listen to understand, not necessarily to be persuaded.

SUPPORTING THE OTHER PARENT'S RELATIONSHIP WITH YOUR CHILD
©2007 by William A. Eddy, LCSW, ESQ.

1. POSITIVE COMMENTS: Regularly point out positive qualities of the other parent to your child.
2. REPAIRING COMMENTS: All parents make negative comments about the other parent at times. If you realize you made such a comment, follow up with a "repairing comment": "I just spoke negatively about your father [or mother]. I don't really mean to be so negative. He has many positive qualities and I really value your relationship with him. I'm just upset and my feelings are my responsibility, not his and not yours."
3. AVOID REINFORCING NEGATIVE COMMENTS: Healthy children say all kinds of things, positive and negative, about their parents - even about abusive parents. If there is abuse, have it investigated by professionals. If not, be careful that you are not paying undue attention to their negative comments and ignoring their positive comments.
4. TEACH PROBLEM-SOLVING STRATEGIES: If your child complains about the other parent's behavior, unless it is abusive, suggest strategies for coping: "Honey, tell your father something nice before you ask for something difficult." "Show your mother the project you did again, she might have been busy the first time." "If he/she is upset, maybe you can just go to your room and try not to listen and draw a picture instead."
5. AVOID EXCESSIVE INTIMACY: Children naturally become more independent and self-aware as they grow up. Be careful not to be excessively intimate with your child for the child's age, as this may create an unhealthy dependency on you. Examples include having the child regularly sleep with you in your bed beyond infancy; sharing adult information and decisions (such as about the divorce); and excessive sadness at exchanges or how you miss the child when he or she is at the other parent's house.
6. AVOID EXCESSIVE COMPARISONS: When you emphasize a skill or characteristic that you have, don't place it in comparison to weaknesses of the other parent. You each have different skills and qualities that are important to your child. By comparing yourself positively and the other parent negatively (even if this feels innocent), you can inadvertently influence your child. Remember that your child is a combination of both of you, and thinking negatively of one parent means the child may think negatively about half of himself or herself.
7. GET SUPPORT OR COUNSELING FOR YOURSELF: It is impossible to go through a divorce without getting upset some of the time. Protect your child from as much as possible by sharing your upset feelings with adult friends and family, away from your child. Get counseling to cope with the stress you are under.

©2007 by William A. Eddy, LCSW, ESQ.


How to reach Bruce D. Kennedy

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