You've made the difficult decision to divorce, after months or even years of trying to make your marriage work. The choice, painful as it is, may also bring the relief that comes with having finally made a hard decision. However, that relief is likely to be followed by some anxiety at the prospect of translating your decision into reality. Knowledge is power. Here's the process for officially beginning your Minnesota divorce, or "dissolution of marriage," as it is formally known.
Most people, especially if they have children or significant assets, choose to get an attorney's help with their divorce. Whether or not you use an attorney, the first step in putting your divorce in motion is preparing, signing and filing the proper documents in the court for the county in which you live; for instance, if you live in Hennepin County, you would file there. If you and your spouse are living in different Minnesota counties, you may also file in the county in which your spouse lives. A word of caution: you may not file for divorce in Minnesota until either you or your spouse have lived in the state for 180 days.
The two documents you must file to officially begin the divorce process are the Summons and Petition. Though often referred to together, they are separate documents. The Petition sets forth the basic facts of your case and what you are asking the court for—a divorce, division of property, custody of children, child support, spousal maintenance, and so forth. The Summons tells the other party, your spouse, that a divorce case has been filed. If you file for divorce, you are known in the case as the petitioner; your spouse is known as the respondent. The Summons and Petition are served together.
It’s important that your spouse be properly served with the Summons and Petition or your Minnesota divorce case cannot move forward. Service can take place in one of two ways. A third party, such as a private process server or the sheriff, may hand deliver the Summons and Petition to your spouse. The third party signs a notarized document called an Affidavit of Personal Service saying that he or she served the Respondent. Alternately, if you think your spouse will be agreeable, you may ask him or her to sign an Acknowledgment of Service/Admission of Service, acknowledging receipt of the divorce papers, before a notary public.
Your spouse, the respondent, has 30 days from the date of service of the Summons and Petition to file a response to them with the court. This response, in legal terms, is called an Answer. Sometimes, particularly if the respondent disagrees with the relief that the petitioner is requesting in the Petition, the respondent files a Counter-Petition along with the Answer, requesting the relief he or she wants from the court. It's important to remember that just because someone asks for something, like spousal maintenance, in a Petition or Counter-Petition, it doesn't mean the court will grant it.
Today, in most Minnesota counties, the court will send a Notice of Court Assignment and set the matter on for an Initial Case Management Conference (ICMC). The ICMC is a court appearance where the parties meet and tell the court of any agreements they have made. The judge will tell them about, and set the appointments for the parties to participate in, the Early Neutral Evaluation (ENE) process. The ENE process is a voluntary process for mediation of custody and parenting time issues and financial issues, but it is done with experienced family law attorneys who evaluate the parties' positions and offer an opinion on how the issues should be decided.
If the parties are unable to reach agreements within the ENE process, the court is notified and a Scheduling Order is issued. The Scheduling Order sets forth important deadlines and dates in the case. If you have an attorney, this and other communication from the court will come to your attorney, who will notify you. If you don't have an attorney, the court will send all notices to the address listed in the Petition. If you move, be sure to notify the court, or you may miss an important deadline or hearing.
What happens if the respondent ... doesn't respond? Unlike evading service of process, which keeps the divorce from moving forward, a respondent cannot stonewall a divorce by refusing to file an Answer once he or she is properly served. If the 30 day period after service ends without the respondent filing an answer, the petitioner can request a default hearing.
In order to be granted a default, the petitioner must complete a default scheduling request (available at the courthouse or online), and file it along with a copy of the Petition, a proposed Judgment of Divorce, and "Findings of Fact and Conclusions of Law." This is a legal brief stating that the petitioner properly served the respondent with the Petition, the respondent failed to file an Answer, and asking the court to grant the relief requested in the Petition based on Minnesota's divorce default statutes.
If your spouse defaults by failing to file an Answer, and you have no children together, you may not even need to appear in court to be granted a divorce by default. If there are children, you may need to appear before the judge and answer some simple questions, but the judge is still likely to grant the relief you asked for.
Starting a Minnesota divorce case can be intimidating, but it doesn't have to be. If you have an experienced family law attorney who can walk you through every step of the process, much of the burden of filing and navigating your divorce is lifted. Please contact us at Mundahl Law with any questions you have about starting your Minnesota divorce case. We look forward to working with you.