When considering divorce, it’s important to be prepared on all accounts. There are many complexities, decisions, and hurdles to weigh when contemplating a divorce. Regardless of the events leading up to a divorce, it’s essential for both parties to be open and honest with attorneys, keep records of everything, and maintain a positive mindset even during tough times. Following these guidelines can help create a more efficient process.
In Minnesota, divorce or legal separation may be pursued by either party in a marriage. Divorce is when the marriage between two parties is legally dissolved, and to begin this process, at least one spouse must reside in Minnesota for a minimum of 180 days. Legal separation changes the status of marriage and is a different legal process compared to divorce. In a legal separation, the couple stays married while living apart. Couples may choose legal separation if they must stay legally married due to health, finances, or religious purposes. In both instances, involved parties can expect to have the following factors determined by the courts system along with many more:
- Child custody
- Parenting time
- Child support
- Spousal maintenance
Minnesota Prenuptial Agreements
A prenuptial agreement is a legal document that establishes financial and property rights for each spouse in the event of a divorce. Many couples throughout the United States have turned to creating a prenuptial agreement. This document is an excellent way to be forward-thinking in a relationship and determine an agreement before a relationship is dissolved. Prenuptial agreements can cover various topics from the division of assets and debts to how a property is handled. While a prenuptial agreement may seem daunting on a new marriage, it’s a great way to ensure both parties are protected in the unfavorable event of death or divorce.
If a couple decides to create a prenuptial agreement, the court will likely consider each spouse’s earnings, assets, and debt disclosure. Couples that decide to move forward with a prenuptial agreement are encouraged to consider the future, be transparent with one another, leave children out of it, and seek professional guidance to be sure the document is prepared correctly.
High Asset Divorces
High asset divorce cases can be complicated and time-consuming as more financial assets will need consideration. It’s essential for both parties to know what to expect and take proper measures to prepare, as it will likely leave both spouses in a better position. In some cases, couples in a high asset relationship may create a prenuptial agreement to protect and identify specific stipulations should a divorce arise. Both marital and non-marital assets are considered and accounted for in a high asset divorce, so working with a lawyer who has financial and valuation knowledge is vital.
Spouses involved in a divorce may have spousal maintenance awards determined by agreement or judges. The amount of a spousal maintenance award will vary case by case. A family law attorney can help each spouse adequately prepare their case to ensure fair and realistic maintenance is earned. Spousal maintenance in Minnesota is most prevalent after a long-term marriage, when the parties have significant differences in their incomes, or one spouse has been a homemaker/caregiver for most or all of the marriage. In Minnesota, many factors are considered when determining spousal maintenance needs:
- Income of each spouse
- Financial resources such as marital property or assets
- Age of each spouse
- Education of each spouse
- Job history and work experience of each spouse
- Standard of living
- Loss of earnings
- Retirement benefits
- Emotional and physical health of each spouse
Temporary Spousal Maintenance
During a divorce case, judges review how long a couple has been legally married. Most commonly, parties with shorter marriages are likely to receive temporary spousal maintenance. Temporary spousal maintenance may be awarded to help one spouse gain employment, education, or job skills to maintain their quality of life. Temporary spousal maintenance is also referred to as rehabilitative maintenance. It requires one spouse to pay support to the other spouse to allow time to adjust and settle into the new lifestyle. Eventually, the temporary maintenance period ends, and at this point, the spouse receiving support must prove why it should be extended if applicable.
Permanent Spousal Maintenance
Couples that have been legally married for an extended length of time, likely more than 20 years, may request permanent spousal maintenance. Along with the length of time, the judge also reviews how much income each party makes and their abilities to earn income and meet the marital standard of living. The order put in place will lay out the specifics regarding support payments to ensure both parties are adequately cared for. If a spouse dies, becomes remarried, or another court order is issued, the permanent spousal maintenance order is likely to terminate. Additionally, if the spouse ordered to pay maintenance chooses to retire from working, the support amount may be adjusted accordingly.
Divorce and Retirement
There isn’t a convenient time for any couple to get divorced, but if spouses are nearing retirement, deciding to go through with a divorce can set anticipated retirement dates back even further. At the end of a dissolution, parties may obtain a domestic relations order (DRO) to help them separate retirement account(s). A DRO may help a party navigate taxes and complex retirement fund issues, but it is generally preferable for parties to work with tax professionals and/or financial advisors to help complete this step. This is beneficial as retirement funds can be protected when accessed earlier than expected.
Many retiring couples rely on their housing as a financial asset, as these funds can play a significant role in a retirees’ future. Once a mortgage is paid down, a lot of wealth is stored in a home’s equity, thus making it play a role in the divorce process. Couples may decide to sell the house and split the profits, pay out the ex-spouse so one party can remain in the home , or begin a new mortgage on their own to continue residing in the house.
In 2013, the state of Minnesota legalized same-sex marriage; and in 2015, the U.S. Supreme Court legalized same-sex marriage in all 50 states. Same-sex marriages function the same as opposite-sex marriages, but some challenges and outcomes may differ in divorce. Same-sex couples may have been together for many years before same-sex marriage was legalized, making it challenging to divide assets accurately. Unfortunately, the lack of legal clarity stating the length of a same-sex relationship can complicate the divorce. It’s encouraged for same-sex couples to seek an attorney experienced in same-sex marriages as alternative methods may be necessary to prove relationship length and division of assets.
Property Division and Family Businesses
When it comes to property division, each spouse is encouraged to hire a skilled divorce attorney and business valuation expert to have the necessary support and guidance when going through a divorce.
Marital vs. Non-Marital Property
There are two types of property involved in a married couple’s divorce, marital and non-marital. Both property types are considered regarding equitable distribution. Marital property is any property, debts, or assets obtained during the marriage and non-marital property is the property that was acquired before, during, or after marriage specifically addressed to one party such as a gift, inheritance, personal credit card debt, and more. In determining a fair division of property distribution, the judge will consider a variety of details, some of which include:
- Length of marriage
- Occupation of each spouse
- Estate information
- Source of income of each spouse
- Prior marriages
Division of Business
In Minnesota, the courts system follows equitable distribution in divorce settlements, meaning the courts will divide property between spouses based on fairness. It’s essential to consider that what the courts determine fair may not always be equal. If a couple shares a business, it may be awarded to one spouse while the other receives a monetary share or other assets equaling half of the value of the company. The courts will consider when the business started, how much money was put into the company during the marriage, and how often each spouse was involved with the company.
Determination of Valuation
When moving through a divorce, the judge will determine property division guidelines in the best interest of both parties. If two spouses own a business, the company must be valued for property division purposes. It is encouraged to find an attorney experienced in business valuation because all factors must be considered when determining value. The business valuation expert will review details from accounts receivable and intellectual property to inventory and revenue. Determination of valuation is subjective, and at times can be challenging to determine if the business is family-owned or unique in finding other market comparisons.
An Abusive Spouse and Divorce
Many individuals in the United States today experience forms of domestic abuse, but it’s essential to consider that abuse doesn’t always result in physical harm. Dealing with abuse can be incredibly taxing and challenging as the abused spouse may feel like there is no end in sight. While it may seem impossible or extremely difficult to move forward with divorce if abuse occurs in a relationship, there are many resources available to assist spouses attempting to navigate domestic violence. It’s encouraged to contact a family law attorney who is experienced in divorces that involve domestic abuse, so all parties are represented accurately and true to one’s character.
Order for Protection (OFP)
If a spouse in a relationship is abusive, there are instances where an Order for Protection may be necessary. This document is signed by a judge and issues protections from a specific individual. If the individual in question breaks the order, serious legal action will likely ensue. Scheduling an appointment with a family law attorney and/or a victim advocate will allow for a spouse to determine whether an OFP is necessary and provide assistance throughout the entire process. It is recommended that if a spouse moves forward with an OFP, engaging an experienced family law attorney is crucial to ensure all facts are brought to the judge’s attention in the OFP Petition.
Deciding to get a divorce comes with many considerations and steps. Each situation is unique – from same-sex or high asset marriage to an abusive spouse or navigating a prenuptial agreement. Regardless, it’s important for each party to be knowledgeable and aware of finances and assets as surprises regarding these matters can be defeating. Emotions tend to run high during a divorce, so taking the step to hire an experienced divorce attorney is recommended to ensure all situations are addressed and handled efficiently. While divorce may seem like a prolonged process to reach an outcome, all involved parties will reach a settlement that’s best suited for their needs with proper guidance and assistance.
This article contains general legal information and does not provide legal advice. For legal advice, please contact M. Sue Wilson Law Offices directly.