Are you, or someone you know, contemplating divorce, but scared to begin the process? Have you heard horror stories about divorce from friends or family? Divorce is a highly emotional event and every divorce is different. By educating yourself on the process of divorce, you will be in a better position to make this journey. Let us debunk some common divorce myths for you
Myth #1: I filed for divorce first, so I have the advantage.
The Truth: Divorcing spouses often think that the person who initially files for divorce (referred to as the Petitioner) tends to have the upper hand in the proceeding, when in fact that is not true. Minnesota is a ‘no-fault’ state, which means neither party needs to allege marital misconduct to file for divorce. Either party can simply want out of the marriage for no specific reason. The Judge will disregard any claims of wrong doing or “trash-talking” from either party, unless the allegations involve the children’s well-being. Otherwise, the law gives no preference to the spouse who files first.
However, by filing first, the Petitioner gets to choose the county in which the divorce will take place. This issue will only arise if you and your spouse live in different counties. This may be important because each county handles custody and spousal maintenance issues differently.
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The Truth: Although the court may award the home to the spouse who is currently occupying it, the court will also award the spouse who left the home their appropriate share of marital equity in the property. Although you may choose to move out of your marital home, that does not change the fact that you still have an ownership interest in the property; thereby entitling you to your share in equity earned during the course of the marriage.
There are some steps that you can take to protect yourself if you decide to be the spouse who moves out. First, be sure to take all of your personal and irreplaceable belongings and heirlooms with you when you leave, such as birth certificates, account statements, deeds and insurance policies. It is more likely that you won’t have issues getting those items returned to you later. You may also consider taking pictures and/or videotaping the property to prove there was no damage or destruction to the property when you left.
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The Truth: An asset acquired during the marriage is considered marital and is subject to division by the court. For example, if you earned all of your retirement during the marriage, then whatever amount has been earned will likely be split between you and your spouse in a fair and equitable way. The same goes for vehicles, investments, and all other assets. Your primary vehicle is still a marital asset and subject to division even if it is titled in your name.
For an asset to be considered non-marital, therefore entitling you to all of it, the asset must have been acquired before the marriage OR inherited/acquired as a gift.
The Truth: This is a common misconception. Most parents who do not receive child support think they can keep the children away from the other parent; but that is not true. Actually, it is against the law. Minnesota Statute Sec. 518.175, subdivision 1(a) clearly states that a Judge cannot take away parenting time from the Payor of child support if he or she fails the court ordered child support. Child support and custody or parenting time issues are two completely different legal matters.
There are, however, options to consider if you do not receive support payments, such as bringing a motion to court for the following:
• To suspend the Payor’s driver's, recreational, and/or professional license(s);
• To intercept the Payor’s tax refunds; or
• To acquire a lien against property owned by the Payor, including motor vehicles or real estate.
The Truth: Mediation is much different than traditional litigation in Court. It is an alternative way to resolve your conflict. Mediation offers a private and personal way to reach an agreement that saves time, money, and stress.
Mediation is a voluntary process where you and your spouse meet with a neutral third-party (the mediator) to discuss your conflict. The mediator’s role is to assist the two of you in sorting out your affairs. Mediation allows couples to communicate and resolve their issues outside of the courtroom. Mediation is much more cost-effective than going to court and may actually help the parties avoid a long and expensive legal battle. A skilled mediator will help the parties talk to one another and consider creative solutions to their problems. The goal of mediation is to allow the parties to communicate and reach a resolution that both parties can agree to.
Here are some benefits to Mediation:
• Mediation is less expensive than litigation;
• Mediation is faster than court;
• You and your spouse will determine your own resolution; and
• You and your spouse are more likely to follow-through and comply with your own agreements, which reduces the likelihood of returning to court in the future.
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The Truth: An annulment is similar to a divorce because it ends the marriage. However, the main difference between annulment and divorce is that annulment treats the marriage as if it never happened.
Under Minnesota law, annulment is only available in a few, limited circumstances, such as:
(1) A party was unable to voluntarily consent to marry at the time of the marriage ceremony. The inability to consent could have been the result of mental illness, the influence of alcohol or drugs, or age, plus the other party must have been unaware of these circumstances at the time of the ceremony. Consent by fraud or force is also grounds for an annulment; or
(2) A party is not able to consummate the marriage with sexual intercourse, and again, the other party was unaware of this issue at the time of the ceremony; or
(3) A party is too young to get married. In Minnesota, a person must be 18 years of age in order to get married without parental consent. A person can marry at age 16 or 17, but they must have the consent of a parent, legal guardian, or court approval of the application for a marriage license.
In Minnesota, requesting an annulment is not based on the length of the marriage. Annulment is based on the circumstances of the parties at the time of the marriage. Simply stated, if you were unable to marry at the time that you actually got married, then your marriage is void and will be annulled. If your marriage does not meet one of the limited circumstances listed above, then you cannot receive an annulment.
The Truth: As mentioned before, Minnesota is a ‘no-fault’ state, which means the Judge will only hear the facts. The Judge does not hear either party’s story. In fact, most of what the other party does or the reasons for why you are getting divorced are of little importance to the court. Can you imagine if the Judge had to hear every detail of the drama surrounding every divorcing couple? It is unrealistic to think the Judge has time for that. In reality, many of the details that led to divorce are not relevant in a no-fault state like Minnesota. Instead, the Judge only hears the relevant facts and applies the law accordingly. In other words, bad behavior will often be overlooked and good behavior will often not be rewarded; unless, of course, the bad behavior is unlawful.
The Truth: When a divorce occurs, there is no real winner or loser. Divorce often results in both parties having significantly less material wealth than before the divorce. You may occasionally hear of one party receiving a huge settlement award, but in most cases, both parties must come to an agreement which involves splitting the assets fairly and equitably.
A true winner in a divorce proceeding is a couple that can remain civil to one another and maintain a positive relationship with their children. Co-parenting your children after divorce is more important than winning or losing.
The Truth: The main difference between a legal separation and a divorce is this: If you are legally separated, then you are still legally married. Whereas, if you are divorced, then you are no longer married. The only difference between legal separation and divorce is that you remain married to one another. A legal separation involves many of the same steps as a divorce, such as serving and filing a petition, dealing with custody, parenting time, child support and alimony, and dividing assets and debts.
In Minnesota, there is no obligation to be legally separated before divorcing. Legal separation can be just as costly and lengthy as divorce. So, why would anyone choose to become legally separated instead of divorced? Most couples who choose legal separation do so for strong moral or religious reasons, to remain on the other spouse’s medical insurance, or for other financial reasons.
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The Truth: Every divorce case is different. There is no cookie cutter divorce. The cost and length of your divorce will depend on a variety of factors. Unfortunately, we cannot give you a definite dollar amount for the cost of your divorce. You can, however, expect it to cost as much as you are willing to fight. Or, in the alternative, you can save costs by reaching an agreement that you are comfortable with.
You can help control the cost by being organized and responding to your attorney in a timely manner. You cannot control how much your spouse will fight or what issues your spouse will choose to contest. If you choose to fight back, it will cost you money. In the end, you need to decide how important each issue is to you.
Keep in mind, most attorneys bill according to the time spent on your file. In other words, every phone call, letter or email costs you money. Remember, it is very important that you are organized. The more organized you are, the less money it will cost you in the long run. When you ask an attorney for a total cost of your divorce, they will likely provide you with a ‘guestimate’ based on past or similar case they handled.
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