Toppling 12 Myths of Divorce in Minnesota

Every divorce in Minnesota is different. Find out the facts that will matter the most in yours.

By , Attorney

Because divorce affects so many people, there's no shortage of people sharing their stories and experiences far and wide. If you've mentioned you're getting a divorce, you've probably already received lots of advice—solicited and otherwise. It's great to get support and advice from friends and family, but take it with a grain of salt—every divorce case is different.

As a result of all this talk, there are countless myths surrounding divorce. Let's debunk some of the most common myths about divorce (called "dissolution of marriage") in Minnesota.

  1. "The party initiating the divorce has an advantage."
  2. "Leaving the marital home might be viewed as abandoning property."
  3. "Title determines a property award."
  4. "Child support obligors have no rights" or "The courts can't deal with delinquent obligors."
  5. "The trial court hears 'the full story,' determines the 'truth,' and metes out justice accordingly."
  6. "A legal separation is common."
  7. "The more assets involved, the higher the attorneys' fees."
  8. "Divorces are always nasty."
  9. "Someone 'wins' in a divorce."
  10. "Mediation will never work in my case."
  11. "There is a particular age at which children can dictate custody."
  12. "The children are doing great!"

Myth #1: "The party initiating the divorce has an advantage."

Divorcing spouses are often concerned that courts will favor the "petitioner" (the spouse that files paperwork with the court asking for a divorce). In fact, the petitioner has no legal advantages over the "respondent" spouse.

Moreover, because Minnesota is a "no-fault" state (meaning you don't need to allege spousal misconduct to get divorced), courts disregard claims of wrongdoing, unless they affect the best interests of the children. So, the petitioner doesn't win any "points" in the matter by trash-talking the respondent in the initial divorce filing. In fact, airing out your dirty laundry in the public forum of the court is likely to lead only to a more contentious, longer, and costlier process.

There is one advantage to being the petitioner. If the parties reside in different counties, the petitioner can file the divorce in the district court of the county where either spouse lives. (Minn. Stat. § 519.09 (2022).) This is known as choosing the "venue" for the divorce. Venue can be critical because judicial views on custody and alimony can vary from county to county. Even if the counties treat these issues the same, it might be inconvenient for the respondent to have to travel to the county where the petitioner lives. The respondent can request a change in venue, but will need to show a good reason for the change.

Myth #2: "Leaving the marital home might be viewed as abandoning property."

Many individuals mistakenly believe that they've abandoned their equity in the family home by moving out. While the court may award the family home to the spouse living in it at the time the divorce is heard, the spouse that moved out will typically be awarded other property or a cash settlement equal to their equity in the home. The bottom line here is that you don't give up your equity in the marital home by moving out.

If you do move out, take steps to guard against destruction of property. Videotape the contents of the home, such as furniture, art and other valuables. If you plan to leave important documents in the home, make copies—you might need access to items such as birth certificates, account statements, deeds and insurance policies to complete your divorce paperwork. You might also consider taking your own family heirlooms and other personal, irreplaceable items with you.

Can My Spouse Change the Locks on the Family House?

A related concern is whether it's okay to change the locks on the family home once the other spouse moves out. Before filing for divorce, and as long as there's no court order stating otherwise, either spouse might technically be able to change the locks. But in most situations, it's not a good idea—it can escalate tensions, posing a risk to property or people. And, depending on the law in the state where you live, the lock out might even hurt a spouse when it comes time to determine property allocation or alimony.

In Minnesota, when you file for divorce, you or your spouse can ask the court for a temporary order regarding use of the family home (and other property), and preventing the spouses from harassing each other or blocking each other's access to property. However, a temporary order can't exclude either spouse from the family home unless the court finds that there's "immediate danger of physical harm to the other party or the children of either party." (Minn. Stat. § 518.131 (2022).) So, if a spouse changed the locks while a temporary order is in place, the court could find that spouse in contempt of court and possibly guilty of a misdemeanor. A temporary order lasts until it's either amended or ended by court order, or until the court enters the final divorce decree.

That being said, if you are in fear of your spouse or have reason to believe they might pose a risk to you or your children, consider seeking a temporary restraining order (TRO) or temporary protective order (TPO).

Myth #3: "Title determines a property award."

In Minnesota, any asset acquired by either spouse during the marriage (except through gift or inheritance) is considered "marital" property—regardless of whether the title is held individually or by the spouses in a form of co-ownership. All marital property is subject to division by the court. The fact that title is in the name of only one spouse can be inconsequential. (Minn. Stat. § 518.003 (2002).)

"Non-marital" property includes any property acquired by one spouse that is:

  • acquired as a gift, bequest, devise, or inheritance made by a third party to one spouse but not the other
  • acquired before the marriage
  • acquired in exchange for or is the increase in value of non-marital property
  • acquired by a spouse after the date the court has valued the marital assets (usually at the prehearing settlement conference) and
  • excluded by a valid premarital contract.

(Minn. Stat. § 518.003 (2002).)

Courts might take title into account when determining whether a particular asset has maintained a non-marital component. For example, if one spouse amassed sizable savings before marriage and kept it all in a separate, individual account held in their name only, the separate title on the account might suggest that the spouse intended to preserve the non-marital nature of the savings.

Myth #4: "Child support obligors have no rights" or "The courts can't deal with delinquent obligors."

There is a common belief among child support "obligors" (parents ordered to pay child support) that they are the victims of their ex-spouses or the legal system. The following should help dispel this myth.

First, both parents have a legal duty to financially support their child. Child support laws are designed to protect children and ensure that their basic needs are met. So, before complaining about an ex-spouse or the judge, obligors should remember that courts order child support to ensure that children will continue to thrive after a divorce.

Second, child support is not limitless. Minnesota's child support guidelines cap the level of support to correlate with the obligor's income and also provide a decreased obligation for parents with lower incomes.

Another common complaint is that the system is too soft on child support obligors. Truth be told, there are some self-employed parents that are doing well financially, but whose "inaccurate" tax returns show little income after they've written off business expenses (such as cars, travel, and entertainment). Sometimes, these parents are able to fool the system and pay a lower amount of support.

However, if a court finds that an obligor is voluntarily unemployed, underemployed, or has underreported income to avoid child support, the court may impute (attribute) the income the obligor could earn, and calculate child support based on potential rather than actual income. (Minn. Stat. § 518A.32 (2022).)

And, if an obligor stops making court-ordered payments, obligees can go to court or seek assistance from the Minnesota Department of Human Service's child support office for help enforcing the order. Minnesota law allows for several ways to enforce child support orders, including:

In addition, the law doesn't allow obligors to discharge their child support obligations through bankruptcy.

Myth #5: "The trial court hears 'the full story,' determines the 'truth,' and metes out justice accordingly."

Many of the facts and circumstances that a divorcing spouse believes will be important are likely to be of little importance to the court. It‘s unrealistic to assume a judge can review all of the circumstances that led to the divorce. The issues are simply too complex, the court lacks time to hear all of it, and, in the end, many of the nitty-gritty details of the marriage aren't relevant to the case, especially in a no-fault state like Minnesota.

Instead, courts evaluate a "snapshot" of the current situation and then apply the law accordingly. To the chagrin of some spouses, Minnesota courts aren't likely to punish wrongdoing or reward admirable behavior.

Myth #6: "A legal separation is common."

Some spouses are under the impression that they must obtain a legal separation to get divorced. To the contrary, legal separation is an alternative to divorce, but the process is almost identical: you file legal paperwork, deal with all the same issues in a divorce, and ask a judge for an order of legal separation. If you plan to divorce, a legal separation is unnecessary and will only increase the total cost of ending the marriage.

Legal separations are actually pretty rare; when they are sought, it's typically for religious or moral reasons, or to benefit from being separated but not divorced (for example, some employer-sponsored health plans allow employee-spouses to keep their ex-spouses insured if the couple is separated but not divorced).

Myth #7: "The more assets involved, the higher the attorneys' fees."

The size of the marital estate doesn't always correlate with the overall fees incurred. Dividing property in Minnesota is not always a major issue between spouses. Some couples with substantial marital estates manage to divide assets with minimal fighting or attorneys' fees. Once they're informed of their rights, how the law works, and what a court would likely do, they divide property accordingly. These individuals appreciate the wisdom of avoiding unnecessary legal expenses.

However, mistaken assumptions or contentious attitudes can be costly, even in small cases. For example, some spouses will fight over small assets no matter what the cost—even when the law isn't on their side. Driven by anger, they would rather pay an attorney $2,000 than give $200 to their spouse.

This shortsighted approach overlooks many things, the first of which is the obvious waste of money. It's important to ask yourself if the asset is really worth the fight. Divorce leaves most people with fewer assets than they had during marriage—why spend what you have left on attorneys' fees? It also overlooks the possibility that with more property on hand, the other spouse might be more willing and able to contribute to college costs and other child-related expenses. Finally, property allocated to your spouse might also reduce the need for alimony.

If you find yourself fighting over everything, take a moment to reflect on why you're doing it, and how much money you're losing on the fight. A good family law attorney will provide solid advice, and help control fees where possible, without compromising on the final results.

Myth #8: "Divorces are always nasty."

We're all familiar with the lengthy, contentious, and expensive divorce battles portrayed in movies and media. The truth is that most divorces never even go to trial. Although there are many issues to be decided in a divorce—such as property division, alimony, child support, and child custody—most couples are able to come to an agreement after talking with each other or with the assistance of a divorce mediator.

When a couple reaches agreement on the issues in their divorce, they can file an uncontested divorce. There are different kinds of uncontested divorce, but they all have this in common: The couple won't need to go to trial to have a judge make decisions for them on the details of their divorce. Many couples filing for an uncontested divorce take care of filing the paperwork on their own or with the help of an online divorce service.

There are two types of uncontested divorce in Minnesota: summary dissolution and dissolution by joint petition. Going with either of these will be cheaper than and allow you to finalize your divorce faster than a contested divorce.

Myth #9: "Someone 'wins' in a divorce."

Divorce never really ends with a "victory" by either party. Generally, both parties have substantially less material wealth than they had before the divorce. Occasionally, you hear about a spouse receiving a very large settlement or alimony award. But more commonly, both spouses must compromise in order to reach an agreement.

If there are any real "winners" in the process, it's those who maintain positive relationships with an ex-spouse so that they are able to co-parent their children.

Myth #10: "Mediation will never work in my case."

Mediation is well suited to the majority of divorces. Its desirability lies in the self-determination of the parties, the expediency of the process, the reduced overall cost, and the potential that it will help the couple build new avenues for communication to resolve future child-related disputes. Finding divorce mediators has never been easier, and you might even be able to mediate your divorce online.

Mediation forces couples to explore mutually-beneficial solutions, including remedies outside the boundaries of court authority. For example, couples can come up with their own, creative divisions of property and debt that are tax-wise for their own situation, but not necessarily something a court would order.

Myth #11: "There is a particular age at which children can dictate custody."

There is no rule that children of a certain age can dictate where they live. Rather, a Minnesota judge can interview a child to discover the child's preference if the judge believes the child is old enough to express a preference. (Minn. Stat. § 518.166 (2022).) A child's stated preference is only one small factor in deciding child custody in Minnesota.

Myth #12: "The children are doing great!"

Most children of divorce exhibit signs of emotional, psychological, behavioral, and social distress. Many have significant adjustment problems and show lower academic achievement when compared with children from intact families. According to one study, 37% of children from divorced homes were psychologically troubled and manifested moderate to severe clinical depression, even five years after a divorce. And children deprived of frequent access to their fathers tend to show diminished self-esteem, lasting many years after the divorce.

Counseling is the key to lessening emotional harm to children. Most family law attorneys will be able to provide referrals to a good child therapist.

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