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Common Misconceptions About Divorce & Family Law

Michael Fink Law, PLLC Nov. 9, 2021

According to data compiled by the U.S. Census Bureau, both marriage and divorce rates declined nationally over the 10-year period being studied (2008 to 2018). Across the nation, the marriage rate stood at 17.9 persons per 1,000 females 15 years of age or older in 2008 and dropped to 16.6 by 2018. The divorce rate went from 10.5 to 7.7 per females in that age group in the same period nationally.

In Minnesota, the marriage rate was 16.9 per 1,000 women in 2018, down from 18.0 a decade earlier, and the divorce rate stood at 7.1 per 1,000 women, down from 9.1.

Minnesota divorce laws are no fault, meaning that all it takes to get a divorce is for one spouse to claim irreconcilable differences. Even with no fault, anyone considering divorce realizes there are consequences when it comes to the division of assets, custody of the children, spousal and child support payments, and parenting time (visitation rights).

Many people have fears and misconceptions surrounding these areas of divorce law. Most people have heard horror stories about people who went through divorce before they retained my services. While it’s normal to have concerns and weigh every decision accordingly, letting misconceptions stand in your way can only worsen matters or even delay moving on to a fresh start. I address some of the most common misconceptions below.

If you have questions or concerns about going through a divorce, contact me at Michael Fink Law, PLLC. I serve clients in and around Minneapolis, Minnesota, as well as the neighboring areas of St. Paul, Edina, Minnetonka, St. Louis Park, Wayzata, Golden Valley, Bloomington, Anoka, Chaska, Burnsville, Eagan, Woodbury, Lake Elmo, and Apple Valley,

After owning a business for 30 years, I decided to enter the legal profession and devote myself to family and divorce law with the motto, “Helping families move forward.” Regardless of the situation, I always strive for the best possible outcome for all those involved.

COMMON MISCONCEPTIONS

Below are some common misconceptions and explanations regarding divorce and family law:

If I file for divorce, my spouse can deny and stop it: Under Minnesota’s no-fault divorce statute, one spouse can file divorce papers on the other who then has 30 days to respond. If that spouse fails to respond, the divorce may be considered uncontested, which means the spouse who failed to respond is giving up his or her right to have a say in the proceedings. A non-response does not end the petition. If one party is unresponsive, there is a possibility that the party who filed the divorce would seek a default hearing, and if the unresponsive party does not appear, they could be awarded everything they are seeking in the divorce including custody of the children, spousal maintenance (alimony) child support and property. If the unresponsive party appears at the default hearing, the Court can set a trial date or ask the parties if they would first like to try mediation to settle their disputed issues.

Say the spouse who receives the notice files a response saying he or she doesn’t consent to the divorce. That also will not stop the divorce. It only takes one petitioner to institute divorce proceedings, and all he or she has to claim is that the marriage is irretrievably broken. Once again, mediation may be ordered or trial may ensue.

Our assets will be divided 50/50: Minnesota is not a community property state. The divorce system is based on an equitable distribution of marital property and assets. This generally means that whatever was acquired by either party during the time of marriage is considered marital property belonging to both spouses. There are exceptions for personal property owned prior to marriage and for any inheritance or gifts received individually while married.

If the divorcing couple cannot work out an equitable division on their own, the court will have to decide the issue based on factors such as the financial futures of both spouses, who has legal custody of the children, and many other factors.

If my spouse cheated on me, then I get everything: Not so fast. Adultery/infidelity is not usually a factor a court considers when dividing the parties' assets and liabilities unless the party has used marital assets to foster the adulterous relationship such as purchasing a car or a house for their paramour to use. If large sums were spent on that relationship, the court may award more of the remaining assets to the offended party. Adultery is not a factor that the court weighs when it comes to deciding “the best interests” of the children. However, if one of the parties has a new cohabiting relationship with a person who is a registered sex offender or who has committed crimes involving assult, murder, or domestic violence, the court may consider that when awarding custody or parenting time. does not result in one spouse’s forfeiture of his or her equitable share of marital assets.

The mother is always awarded sole legal custody of the children: This is not a given. Most parents are awarded joint legal custody of the children. Father and mother can both be awarded sole legal custody depending on the facts and circumstances of their individual cases. "The best interests” of the child or children are the determining factor here if the court is asked to decide. In the majority of cases, the parents will work out custody and parenting time details through mediation or negotiation. Attorneys can play an important role in the mediation process and will be present with their clients during the process. When cases are settled through mediation, the parties' attorneys create a stipulated judgment and decree of divorce that is filed with the court and signed by the judge with no need for a court appearance.

The children can choose with whom to live: Under Minnesota law, there are 12 best interest factors that a court must weigh when deciding legal and physical custody of the children. (Minnesota Statute § 518.17). "The reasonable preference of the child if the court deems the child to be of sufficient ability, age, and maturity to express and independent and reliable preference." The older the child, the more weight the court is likely to give to the child’s preference. A 16-year-old son may wish to stay with his father for several reasons, but the Court still has to weigh all 12 of the best interest factors before it makes a decision. A 12-year-old daughter may choose the mother because of their similar interests, though the court would give a 12-year-old's preferences much less weight than a 16-year-old. Minnesota law sets no hard and fast age standard on when children get to decide, which gives judges great discretion in deciding custody and parenting time matters. Most judges will advise parties to come to an agreement that they both can live with, rather than putting the decision in the hands of a person that does not know their children at all.

You have to get divorced in the state where you were married: Minnesota divorce law requires only that you have resided in the state for 180 days to file for and conclude a divorce.

We were married under common law, so there is no need to file for divorce: No state in the union recognizes common-law marriages. A popular myth suggests that once you’ve lived together long enough – seven years seems to be the magic number – you become married under common law, but this simply isn’t the case. So, yes, you would not qualify for a legal divorce since you’re not legally married.

GET EXPERIENCED GUIDANCE YOU CAN TRUST

Divorce is a time of great stress when emotions can sometimes get out of hand. I will be there to provide an empathetic approach as you go through the legal process. It’s best if everything can be mutually resolved without going through a divorce proceeding in court. I will work with you to resolve any differences and help you come to a joint agreement on the principal issues of assets and children. If need be, I will also be there to help you exercise your rights if matters do end up in court.

If you’re considering divorce, have been served a divorce notice, or are already preparing for a court proceeding, contact me immediately at Michael Fink Law, PLLC. I proudly serve clients in or around Minneapolis, Minnesota, as well as St. Paul, Edina, Minnetonka, St. Louis Park, Wayzata, Golden Valley, Bloomington, Anoka, Chaska, Burnsville, Eagan, Woodbury, Lake Elmo, and Apple Valley.