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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

As of January 1, 2008 the law requires at least one spouse must be a resident of the state for at least 180 days prior to filing for a divorce. [Based on Minnesota Statutes; Chapter 518.07]

WHERE TO FILE: A petition for dissolution or legal separation should be filed for in the country where either spouse resides. [Based on MN Statutes; Chapter 518.09]

LEGAL GROUNDS FOR DIVORCE: Irretrievable breakdown of the marriage relationship. [Based on Minnesota Statutes; Chapter 518.06]

LEGAL SEPARATION: Minnesota recognizes legal separation. A legal separation does not terminate the marital status of the parties, but rather determines the rights and responsibilities of both husband and wife arising out of the marital relationship. One or both parties can petition for a decree of legal separation and if neither party contests the granting of the decree nor petitions for a decree of dissolution, the court shall grant the legal separation. [Based on Minnesota Statutes; Chapter 518.06]

SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES: If both parties jointly file the divorce petition, there is no need for a summons or service of the petition. [Based on Minnesota Statutes; Chapters 518.09 and 518.11]

MEDIATION OR COUNSELING REQUIREMENTS: In cases where custody is likely to be contest, mediation may be ordered. Exceptions are when there is evidence of physical or sexual abuse. If agreement cannot be reached through mediation, the mediator may recommend that an evaluation be conducted. [Based on MN Statutes; Chapter 518.619].

MARITAL PROPERTY DISTRIBUTION: Minnesota is an equitable distribution state. Marital property shall be divided without regard to marital fault, and will base the property distribution on the following factors:

1. length of the marriage,

2. age, health, and occupation of each party,

3. income, income potential, vocational skills or each party,

4. the contribution of each spouse to the marital property, including the contributions as a homemaker [Based on Minnesota Statutes; Chapter 518.58]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Alimony may be granted on a temporary or permanent basis, based on the following factors:

1. The financial resources of the spouse seeking maintenance, and their ability to meet their financial needs.

2. The time needed to acquire training and education to become self-reliant.

3. The standard of living established during the marriage.

4. If the spouse seeking maintenance is unable to seek employment due to the restraints of caring for a child whose condition or circumstances warrant that the custodial parent not seek employment outside the home.

5. The duration of the marriage, and in the case of a homemaker, the length of absence from the workforce.

6. The age and physical capabilities of the spouse seeking maintenance.

7. The ability of the other spouse to pay alimony and still meet his or her own needs.

8. The contribution of each spouse to the acquisition and care of marital property, as well as the contribution of a spouse as a homemaker, enabling the other spouse to further their business or employment. [Based on MN Statutes; Chapter 518.552]

CHILD CUSTODY: Joint or sole custody may be awarded, based on "the best interests of the child", with the relevant factors being:

* the relationship between each parent and the child;

* the child's primary caretaker;

* the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

* the child's adjustment to home, school, and community. Also considered is how long the child has been in a stable environment and the permanence of the custodial home.

* the mental and physical health of all individuals involved;

* the capacity and disposition of the parents to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

* whether there is evidence of abuse, either between the parents, between the parent and another individual, or directed towards the child. [Based on Minnesota Statutes; Chapter 518.17]

CHILD SUPPORT: Marital misconduct is not an issue in the determination of child support. Child support is based on the Minnesota Child Support Guidelines, also taking into consideration the following factors as basis for deviation:

1. the standard of living that the child has become accustomed to during the marriage;

2. the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported;

3. which parent will claim the child or children as a dependent for tax purposes, and what financial impact that will have;

4. the parent's debts,

5. whether the parent paying child support is on public assistance

6. The official child support guidelines are contained in Minnesota Statutes; Chapter 518.551 Subd. 5.section (b)

If the parent receiving child support is on public assistance, child support shall be paid to the child enforcement agency as long as that parent receives assistance. Every support order must address income withholding for the obligated parent.

HOW TO ENFORCE CHILD SUPPORT IN MINNESOTTA – THE 2008 FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have decided to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful and methodical considerations you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have.

These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF MINNESOTA:

https://www.revisor.leg.state.mn.us/statutes/?id=518