Possible Benefits To Being The First One To File Divorce In Minnesota
In this article, you will learn:
- Why there is no benefit to filing first
- How custody is determined in Minnesota
Minnesota is a no-fault state. So it’s enough for you to say, “I don’t want to be married anymore,” and not have to have any reasons for it. But you do want to have some idea of what it is you want the divorce to resolve, whether that’s the house, whether that’s the car, whether that’s the kids, whether that’s the accounts, whatever the case might be. So when it comes to filing first, there is no technical advantage there. Maybe there’s some element of surprise that can happen when receiving the documents, but from a legal perspective, it’s just the opening set of petition work. The other side has 30 days to respond, which can be extended if they need more time. It could also be done by agreement. The statute says 30 days, but the parties can make it longer if they want to.
And eventually, you’ll get a response of some sort. In my 17 years of practice, I’ve only had three cases that have gone to default in the divorce, and that’s where the other side doesn’t respond or doesn’t make a formal appearance. So 90 to 120 days go by, and they’re just not getting anywhere but not engaging with the process. Minnesota doesn’t necessarily need your involvement at that point. Suppose you’re willing to advocate having any control over the outcome, as people who don’t respond are implicitly suggesting they are. In that case, they’ll simply enter an order that looks like whatever your initial filing looked like, assuming that there are not any issues offensive to public policy for some reason. In that default scenario, that first document might be the only document. Hence, crafting that document is more important than is timeliness.
How Custody Is Determined In Minnesota When A Couple Is Divorcing And How A Child’s Input Is Considered?
Technically no, there is no age where the decision is left entirely to a child’s choice. However, in a practical sense, as the child gets older, particularly in the teenage years, what they would like to see for an arrangement is the factor that the court will at least take under advisement, but it’s entirely up to the court. But custody is determined by using the best interest factor test. 13 points effectively say, “Here’s what we think are the issues that control for or are more frequent in raising kids, what is your position on each of these issues as it involves you raising your kids?” So it could be who is taking the kids to medical appointments, feeding them, bathing them if they’re young enough, of course, who cares for them, who takes care of their schooling, and has there been any abuse right down the line? And after getting the set of questions presented or argued to, the court will decide custody of the parents.
Minnesota, I should point, has two custody components. One is physical custody, and the second is legal custody. People have the mistaken belief that physical custody either means or generates time with the child, physical time with the child. It does not. That’s visitation or what we call parenting time in Minnesota. So, it’s a label that’s still out there. It has some importance if, for instance, either the parties agree or there’s a determination that one household will serve as the primary residence of the child or children. Still, besides that, it doesn’t have any other legal weight attached to it. So when it does have more legal importance attached to it is legal custody. Legal custody is all of the decisions that go into raising a child, whether that’s religion, school, healthcare, activities, whatever the case might be; all of the choices that we make as parents from day-to-day are effectively legal custodial decisions.
Minnesota has a statute that says that the custody determinations and estate are presumptively joint. That means that it’s a default position that both parents will be recognized as the legal custodians unless something severe has happened to change the court’s perspective. Now, they’re free to come to their own agreements and decide some other set of circumstances, but generally speaking, except for cases involving abuse, the legal standard is usually that joint legal is probably preferable.
For more information on Family Law in Minnesota, a free initial consultation is your best step. Get the information and legal answers you seek by calling (612) 305-8529 today.
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