A divorce begins when the petitioner (the person who initiates the divorce) serves two legal documents, the Summons and the Petition, to the Respondent (the other party in the divorce). The Respondent then has 30 days to respond to the petition. There are two basic types of divorce in Minnesota: uncontested and contested.
In an uncontested divorce, both parties agree on how to split their possessions, and the court is not required to step in and divide assets and determine child custody. Uncontested divorces are quicker, easier, and cheaper than contested divorces.
Divorce actions are much more than just filling in the blanks – divorcing spouses need to be protected far into the future, and if there are children, you need to ensure that their well-being is safeguarded as well. Even though a divorce can proceed as an uncontested case, it is still a life-impacting experience and should be handled by an experienced and knowledgeable attorney. All of our cases are handled by one of our knowledgeable and experienced family law attorneys. However, attorney representation in uncontested divorces does not have to be expensive.
In an uncontested divorce, both parties agree to the divorce and choose not to fight it in court. The divorce agreement would detail the terms of the divorce including child custody and visitation, child support, spousal support, and the division of marital property and debts. An uncontested divorce requires the cooperation of both parties since both parties have to sign the final Agreement.
The primary issues to be decided during a divorce are alimony or spousal support, division of marital assets, division of debts, child custody, visitation and parenting plans, and child support. When spouses agree, they can usually obtain a divorce quickly. More typically, however, divorcing spouses have disputes regarding their post-marriage financial arrangements and the care and custody of their children.
The majority of divorce proceedings are contested, meaning that both sides participate in the process. The fact that they are contested does not mean that they will be dragged out and end in trial. Very few cases continue to trial, and of those cases, the trial is only on the issues that the parties cannot agree on.
A divorce is commenced by serving two legal documents: the Summons and the Petition. The Summons has “restraining provisions” that basically tell the parties that everything must stay as it is—the party paying insurance must continue paying it, neither party can squander the marital assets, etc. The Petition sets out what the party that drafted the paperwork is asking for in the divorce process.
Both of these documents must be personally handed to the other party. The spouse initiating the action (the “Petitioner”) cannot serve them. The spouse must have a third party over the age of 18 complete and serve the summons and petition upon the Respondent. The act of serving the paperwork starts the clock ticking, and the other party (the “Respondent”) has only 30 days to respond to the petition.
Normally at this point, the Respondent will call the Petitioner’s attorney or an attorney of their own to handle the process. The parties exchange important financial information and other documents through a process called “discovery”. Discovery allows each side to have a complete understanding of what issues have to be resolved in the divorce, and allows each side to determine what they believe is reasonable for a settlement.
Another part of the discovery process is the involvement of professionals to value property and accounts. If there is a home owned by the parties, generally an appraisal will be done to find the current fair market value. If the property were owned by a party prior to the marriage, the professional figures out what portion of the equity is marital or nonmarital.
Professionals are also involved in determining what portion of retirement assets and other investment accounts is marital and what amount is nonmarital. The professional performs a marital tracing to determine these values.
If the parties are able to reach agreement on all of the issues, then the attorney will draft a legal document that everyone signs called a “Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree.” This document is given to the court to sign as well, and finalizes the terms of the divorce that both parties agree upon.
A stipulation may be reached at any time in the proceedings prior to the court issuing a final divorce decree, and it can address anywhere from one issue in the proceeding to settling all issues. A stipulation is the preferred way to finalize a case. This way, both parties play an active role in what the outcome is, and they are generally happier with the results and more willing to follow what they are required to do.