1. What is the difference between a divorce, a legal separation and an annulment?
2. How long will my divorce take?
3. How much will my divorce cost?
4. What are the grounds for divorce?
5. Do I have to have a lawyer represent me in my divorce?
6. Are juries used in divorce cases?
7. Is there a residency requirement for a divorce?
8. Where will my divorce take place?
9. What are the stages of a divorce?
10. What are the chances that my case will settle before going to trial?

1. What is the difference between a divorce, a legal separation and an annulment?

A divorce is the termination of the marital relationship between a husband and wife. A divorce completely terminates the marriage of the parties.

A legal separation is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship. A legal separation does not terminate the marital status of the parties.

A marriage may be declared a nullity where (i) a party lacked the capacity to consent to the marriage, either because of mental infirmity (and the other party didn’t know about it at the time of the marriage) or because of the influence of alcohol, drugs or other intoxicating substance, (ii) a party lacks the physical capacity to consummate the marriage by sexual intercourse (and other party didn’t know about it at the time of the marriage) or (iii) a party was under the age of 18 (or age 16, with parental or court consent). But no marriage shall be declared a nullity because one of the parties was under the age of consent if it appears that they voluntarily cohabitated together as husband and wife after attaining such age.

2. How long will my divorce take?

It is impossible to predict with any certainty exactly how long a divorce will take. This is because the circumstances of each case are unique, and because the goals of the parties often change as the divorce unfolds.

However, once a divorce is started, assuming the parties don’t reconcile, their divorce must end either by agreement or by trial to the court. While it is impossible for you (or your attorney) to compel an agreement by your spouse, it is possible to obtain a trial date. Presently, in some counties such as Hennepin County, it can take as much as a year to get to trial, after a request is made for a trial date. So, unless an agreement is reached by the parties, it could take many months for a divorce case to be finished by trial to the court.

Furthermore, either party may appeal the judge’s decision to the Court of Appeals if either believes that the trial court judge made reversible error(s) during the trial. If the Court of Appeals agrees, the case can be sent back to the trial court judge for a new trial, which would further delay a final decision.

On the other hand, if the parties know the issues that have to be decided in their case, and if they have an agreement that complies with the law, then their divorce can be finished within a few weeks.

3. How much will my divorce cost?

If you don’t hire a lawyer, you will have to pay at least the filing fee, which is presently about $400 each, unless you meet the standards under which the court will waive the payment of the filing fee. You may be required to pay a fee for filing motion(s) with the court, and, depending on the circumstances of your case, you may also have to pay a fee for educational programs required by the state of Minnesota.

If you hire a lawyer, it can be very difficult to predict the exact amount your divorce will cost, because it is impossible to know in advance how many hours your lawyer will have to work on your case. Many lawyers charge an hourly rate, plus expenses. Hourly rates vary from lawyer to lawyer. Expenses may include items paid by the lawyer on your behalf, including for example filing fees, charges for service of process, copying, mailing, faxing, travel and transcription expenses, and professional charges.

4. What are the grounds for divorce?

The grounds for divorce are an irretrievable breakdown of the marriage relationship. A finding of irretrievable breakdown means that there is no reasonable chance of reconciliation, and can be shown by evidence that the parties have lived separate and apart for at least 6 months before filing for divorce, or that there is serious martial discord adversely affecting the attitude of one or both parties toward the marriage.

In other words, if you want a divorce, you can get one just because you want it, and there is almost nothing your spouse can do to stop you. Further, you need not be specific about the reason(s) why you want a divorce: it is enough that you believe the marriage is beyond hope of reconciliation.
There may be serious dispute over the terms and conditions of the divorce, but there can be virtually no dispute over whether or not you are entitled to a divorce.

5. Do I have to have a lawyer represent me in my divorce?

No. You are not required to have a lawyer to get a divorce. Many people can and do represent themselves in divorce proceedings. If you appear without a lawyer, however, you will be required to comply with applicable rules of court, the same as a lawyer is.

In an effort to reduce the cost of divorce, some lawyers offer to supply limited services to people who want to represent themselves in their divorce. Since the individual will sign his or her own court papers and appear in court as his or her own attorney, the time required for the lawyer to provide competent legal service is reduced, and thus the cost of legal service is reduced. The individual, on the other hand, gets help with, for example, learning the procedures used by the court in divorce cases, defining the issues involved in the individual’s case, understanding the parameters within which the judicial officer (judge, referee or magistrate) will decide applicable issues, and improving through preparation the individual’s chances of success in court.

6. Are juries used in divorce cases?

No. All hearings in divorce cases are decided by a judicial officer (judge, referrer or magistrate) without a jury. All final trials are decided by a judge.

7. Is there a residency requirement for a divorce?

Yes. One of the parties must be a resident of or live in Minnesota for at least six months prior to filing for divorce.

8. Where will my divorce take place?

Divorce cases are filed in the county in which either spouse lives. Thus, appearances will take place in the courthouse in the county seat of the applicable county.

9. What are the stages of a divorce?

The first stage may be called the initiation phase, in which a divorce is started by service and filing of a summons and petition. During this phase, information concerning educational program requirements will be given to the parties, who are required to comply as a condition of getting divorced. Also during this phase, methods of alternative dispute resolution (ADR) will be disclosed and the parties will (in most cases) be required to select one and participate in it. And at this time, a schedule will be discussed and imposed by the judicial officer, on which the case will proceed. Also during this phase, the court may be asked by either or both parties to make an order for temporary relief. “Temporary” in this context means “while the divorce is going on”. An order for temporary relief may include (among other things) an award of custody of minor children, an order covering child support, parenting time, responsibility for health insurance for the parties and the children, division of uninsured medical and similar expenses, allocation of day care costs, division of property such as checking accounts, exclusive use and possession of the home and the personal property (including automobiles and the like) in and around the home, liability for debt(s), alimony (or maintenance), and attorney fees. Orders for temporary relief continue in force until modified by a later order for temporary relief, or until entry of a final decree of divorce, which terminates all orders for temporary relief.

A joint petition (without a summons) can be used in some cases, where the issues are limited and the parties have an acceptable agreement prior to going to court.

The second phase may be called the discovery phase, in which the parties obtain information from each other about things such as their assets and liabilities, claims and defenses, experts, witnesses and evidence. The tools used by the parties to obtain such information can include interrogatories (written questions) and requests for production of documents: a party receiving these has a limited time within which to respond. Failure to respond within the time allowed can lead to the imposition of sanctions (including without limitation an award of attorney fees) against the party who fails to respond within the time allowed. The tools used to obtain such information can also include depositions, in which direct questions are asked of a party by the other party (or by his or her attorney), and the answers written down in a transcript. A person being deposed is required to answer questions under oath, the same as if sitting in court before a judge.

The third phase may be called the settlement or trial phase, in which the parties attempt to reach an acceptable agreement on all of the issues in their case. Attempts at settlement are often conducted by the parties (with and without their lawyers) and can also take place in court during meetings with a judicial officer. Settlement efforts can also involve meetings with mediators, arbitrators or the like. If and to the extent that the parties reach an agreement on some or all of the issues in their case, the agreement is presented to a judicial officer, and, if acceptable under the law, the agreement becomes the final divorce decree. If and to the extent that the parties are not able to reach an agreement on some or all of the issues in their case, a trial before a judge will be held, and the judge’s decision becomes the final divorce decree, subject to appeal.

There are no specific time requirements to any of these phases of divorce: depending on the facts and circumstances of your case, they can take very little time, or they can take many months.

10. What are the chances that my case will settle before going to trial?
 
The majority of divorce cases settle without a trial. The reasons (in no particular order) are: cost, delay and uncertainty. If you hire legal counsel, you will almost certainly get tired of paying the bill, sooner or later. Even if you don’t hire a lawyer, the time and effort required to get your case to trial will likely be an increasing burden as the weeks turn into months. And in any event, you may be concerned about the possibility of an adverse decision on disputed issues. Over time, these conditions may cause you to consider settling your case rather than continue to suffer from them.

Similarly, changes in your circumstances or the circumstances of your spouse may increase the attraction of settlement. For example, an offer of a new job elsewhere, the initiation of a new relationship or the simple desire to make a fresh start may cause you to consider settling your disputes.

Of course, cases that don’t settle must go to trial, and be decided by a judge. In this regard, you can think of a court as a decision-making mechanism for people who can’t or won’t make decisions for themselves.