Family law in US: Minnesota: overview
A Q&A guide to family law in the United States: Minnesota.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
In the US and, specifically, in Minnesota, the primary sources of law are the state statutes and opinions issued by the appellate courts.
The main statutes governing matrimonial law in Minnesota are contained in the following chapters of the Minnesota statutes:
518: Marriage Dissolution.
518A: Child Support.
518B: Domestic Abuse.
518C: Uniform Interstate Family Support Act.
518D: Uniform Child Custody Jurisdiction and Enforcement Act.
519: Married Persons, Rights, Privileges.
The terms dissolution, marital dissolution and divorce are used throughout chapter 518 and have the same meaning. Provisions within chapter 518 concern the welfare of children in dissolutions of marriage. Chapter 257 governs legitimacy and custody of children born outside of the marriage. Chapter 257C governs third party custody of children, and chapter 260C governs children in need of protection and services.
Minnesota has an intermediate appellate court, the Court of Appeals, which considers all appeals properly brought. The Supreme Court will accept and review matters of state-wide significance. Published opinions issued by the Court of Appeals and the Supreme Court are the second primary source.
Jurisdiction over the dissolution of marriage is established by personal service. One of the spouses must have been a resident or domiciled in Minnesota for at least 180 days immediately preceding the commencement of the action. Residence is defined as the place where a party has established a permanent home from which the party has no present intention of moving (section 518.00(subd. 9), Minnesota Statute). Domicile is not defined by statute, but has been defined in case law as "the union of residence and intention" (Davidner v Davidner, 304 Minn. 491, 494, 232 [N.W.2d 5,7] [Minn. 1975]).
Residency is a fundamental requirement for jurisdiction, a divorce granted in violation of this provision is void for lack of jurisdiction.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified as Minnesota Statute chapter 518D, governs Minnesota's jurisdiction to determine child custody. The UCCJEA is applicable in marriage dissolution matters and also proceedings involving children of unmarried parents.
Domicile and habitual residence
Domicile is not defined by statute and in the context of family law matters has the same meaning as residency. The terms domicile and residency are used interchangeably (see Question 2). Minnesota law does not have a definition for habitual residence.
A court has jurisdiction over custody and parenting time if Minnesota is the child's home state or the state where the child lived with a parent or guardian for at least six consecutive months immediately before the commencement of a child custody proceeding (chapter 518D, Minnesota Statute (UCCJEA)). If a child is less than six months old, the term means the state where the child has lived from birth. A period of temporary absence of any persons' subject to the statute will form part of the period (section 518D.102(h), Minnesota Statute).
For the purposes of child support and child-related finances, Minnesota courts have jurisdiction to establish child support in all initial determinations where both parents reside in Minnesota. In cases where the custodial parent resides in Minnesota but the non-custodial parent does not, Minnesota courts can exercise personal jurisdiction over the non-resident individuals in certain (section 518C.201, Minnesota Statute).
Conflict of law
The procedure will depend on whether the proceeding involves children.
Procedure without children
The court will first apply the residency test (section 518.07, Minnesota Statute) (see Question 3).
If the petitioning party meets the residency requirement, the court will then analyse whether Minnesota and the foreign court have concurrent jurisdiction. Generally, when courts have concurrent jurisdiction, the first court to acquire jurisdiction has priority in deciding the case (Minnesota Mut. Life Ins. v Anderson, 410 N.W. 2d 80 [Minn.App. 198], citing, Orthmann v Apple River Campground, Inc., 765 F.2d 119, 121 [8th Cir.1985]).
This is referred to as Minnesota's first to file rule. This means that where two actions between the same parties, and on the same subject and testing the same rights, are brought in different jurisdictions with concurrent jurisdiction, then the court that first acquires jurisdiction retains its jurisdiction. This rule is based on comity and the necessity to avoid conflict when judgments are executed by independent courts (Minnesota Mut. Life Ins. v Anderson, 410 N.W. 2d 80 [Minn.App. 1987], citing, State ex rel. Minnesota National Bank of Duluth v District Court, 195 Minn. 169, 173, 262 N.W. 155, 157 ).
In determining whether to dismiss an action where a concurrent action has been commenced in a different forum court, the case also held that a court can consider the following factors:
Informal comity (legal reciprocity) between courts.
Cost and convenience to the parties.
Possibility of vexatious conflict.
Overlap of multiple determinations of the same dispute.
Procedure with children
In proceedings involving children, the court must apply the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified as Minnesota Statute chapter 518D.
There are three steps in determining jurisdiction under the UCCJEA:
Determine whether the court has jurisdiction to make an initial child custody determination under Minnesota Statute section 518D.201.
If the court has jurisdiction, determine whether another custody proceeding is pending in a court of another state that has jurisdiction similar to the provisions of section 518D.201 of the UCCJEA.
If a concurrent proceeding is pending with similar laws to the UCCJEA, then analyse whether it is an inconvenient forum (section 518D.207 (Abu-Dalbouh v Abu-Dalbouh, 547 N.W. 2d 700 [Minn.App. 1996], citing Schmidt v Schmidt, 436 N.W.2d 99, 104 [Minn. 1989])).
Once a court has proper subject-matter jurisdiction under section 518D.201, it is presumed to have exclusive, continuing jurisdiction over child custody determinations. The UCCJEA expressly provides that a foreign country will be treated as if it is a state of the US for the purpose of applying Minnesota Statute sections 518D.101 to 518D.210. A Minnesota court must recognise and enforce a child custody determination made in a foreign country based on factual circumstances and largely conforming to the jurisdictional standards of Minnesota Statute section 518D.
If the court determines that Minnesota is the home state of a child, the court must enquire whether a proceeding involving custody of the child is simultaneously pending before a foreign court. When a simultaneous proceeding is pending, the court must follow certain provisions (section 518D.206, Minnesota Statute (UCCJEA)). A Minnesota court can not exercise jurisdiction unless the proceeding in a foreign court has been terminated or is stayed because the Minnesota court is a more convenient forum (section 518D.206, Minnesota Statute).
If the court determines that concurrent jurisdiction exists with a foreign court, then it must analyse whether Minnesota is an inconvenient forum according to the following factors (section 518D.207, Minnesota Statute):
Whether domestic violence has occurred and is likely to continue.
The length of time the child has resided outside Minnesota.
The distance between the Minnesota court and the foreign jurisdiction.
The relative financial circumstances of the parties.
Any party agreement on jurisdiction.
The nature and location of required evidence, including the child testimony.
The ability of each court to decide the issue quickly and with the necessary procedures to present evidence.
The familiarity of each court with the facts and issues.
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
In Minnesota, pre- and post-nuptial agreements are known as ante-nuptial and post-nuptial contracts. Ante-nuptial and post-nuptial agreements are considered to be contracts, meaning that basic contractual concepts of offer, acceptance and consideration must be met. In addition, the Minnesota legislature set further standards for testing the validity of ante-nuptial and post-nuptial contracts in Minnesota Statute section 519.11. The statute is applicable to all ante-nuptial contracts executed on or after 1 August 1979 and all post-nuptial contracts executed on or after 1 August 1994.
Under Minnesota Statute section 519.11, ante-nuptial contracts must meet procedural and substantive fairness standards to be an enforceable contract. Some refer to the test required as the McKee-Johnson test. In the McKee-Johnson v Johnson case of 1989, the Minnesota Supreme Court determined that an ante-nuptial contract must pass all of the following three tests:
Procedural fairness at execution. To be procedurally fair at execution, the statute requires the ante-nuptial contract to be between a man and woman of legal age. The contract must be in writing, signed by both parties in the presence of two witnesses at least one day before the marriage ceremony, and notarised. In addition, each party must make a full and fair disclosure of his earnings and property. Each party must also have had an opportunity to consult with a lawyer of his choice. However, there is no requirement that the party actually consult with a lawyer. A finding of procedural unfairness at execution will invalidate the agreement.
Substantive fairness at execution. To be substantively fair at execution, the court will evaluate whether the ante-nuptial contract was unconscionable when executed. For example, an agreement under which a spouse with little or no assets agrees to waive a claim to any marital property or maintenance on divorce in exchange for no alternative rights to property or maintenance, may be found by the court to be substantively unfair at the time of execution. A finding of substantive unfairness at execution provides a basis to invalidate part or all of the agreement.
Substantive fairness at enforcement. To be substantively fair at enforcement, the court will evaluate whether the ante-nuptial contract is unconscionable or oppressive at the time of enforcement. This highlights the importance of drafting an agreement that not only provides for the reasonable expectations of each party, but also addresses any anticipated intervening events, for example, the birth of a child or changes in employment or health. A finding of substantive unfairness at enforcement provides a basis to invalidate part or all of the agreement.
It is important to distinguish the burdens of proof in Minnesota. A party contesting an ante-nuptial contract has the burden of showing the agreement was procedurally unfair at execution or substantively unfair relative to the division of non-marital property. However, the proponent of an ante-nuptial contract has the burden of showing the agreement was substantively fair relative to the division of marital property. Ultimately, Minnesota courts will carefully consider whether there was any overreaching by one party over the other that resulted in an unfair ante-nuptial contract.
Legally married spouses can enter into post-nuptial contracts in Minnesota (section 519.11, Minnesota Statute). The statute requires procedural and substantive fairness at the time of execution and enforcement. In fact, post-nuptial contracts need to comply with the requirements of ante-nuptial contracts, and they must also meet additional requirements in order to be enforceable contracts. Notably, at the time of execution, each spouse must be represented by separate counsel. In addition, neither spouse can commence an action for legal separation or dissolution within two years of the date of its execution. Violation of either of these additional terms will make the post-nuptial contract unenforceable.
In addition, parties to post-nuptial contracts are forbidden from using the contract to determine child support, custody or parenting time. Additionally, only a valid post-nuptial contract can amend or revoke an ante-nuptial contract.
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
Minnesota will recognise foreign marriages if they are valid under the law where contracted, unless the marriage is contrary to public policy. Some foreign marriages thought to violate public policy that are specifically prohibited under Minnesota law include:
Marriages entered into before the dissolution of an earlier marriage of one of the parties becomes final.
Certain religious marriages.
Marriage between an ancestor and descendant, for example a brother and sister, uncle and niece, aunt and nephew or first cousins, with the exception of marriages permitted by the established customs of aboriginal cultures (section 517.03, Minnesota Statute).
The validity of a foreign divorce is generally governed by the rule of comity (legal reciprocity), but only if the foreign tribunal had jurisdiction and there was an opportunity for a full and fair trial. However, Minnesota can still refuse to enforce a judgment if it is contrary to public policy.
There is no civil union in Minnesota. Some employers such as the city of Minneapolis allow employees to formalise their relationships in some manner so that partners can share in benefits. However, beyond that unmarried couples can make cohabitation agreements per statute. With the same sex marriage statute and the provision making all relevant laws gender neutral, that should apply to same-sex partners as well. Without a cohabitation agreement, partners cannot claim post-separation support or interest in jointly owned or acquired property beyond the title and contribution.
The grounds for divorce in Minnesota are an irretrievable breakdown of the marriage (section 518.06, Minnesota Statute).
The court has jurisdiction to dissolve a marriage when one or both parties want to end the marriage because any efforts towards reconciliation would be futile. If a dispute arises over whether an irretrievable breakdown exists, the court must find that either:
The parties have separated and lived apart for at least 180 days.
There is serious marital discord lending itself to irreconcilable differences.
Fault, such as adultery, physical or mental cruelty, desertion or failure to provide support, are not relevant in Minnesota.
In Minnesota, marriages that are prohibited are null and void as a matter of law. The following marriages are prohibited and considered a nullity (section 517.03, Minnesota Statute):
Marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final.
Marriage between an ancestor and descendant, brother and sister, uncle and niece, aunt and nephew or first cousins, whether by half or whole blood, except for marriages permitted by the established customs of aboriginal cultures.
Under certain circumstances, a Minnesota court can declare a marriage null and void. The following circumstances provide that a marriage will be declared a nullity (section 518.02, Minnesota Statute):
A party lacked capacity to consent to the marriage at the time of the marriage ceremony, either due to mental incapacity or infirmity, and the other party was unaware of the incapacity at that time.
A party lacked the physical capacity to consummate the marriage through sexual intercourse and the other party was unaware of the incapacity at the time of the marriage ceremony.
A party was under the legal age for marriage, which is 18 years of age in Minnesota (or 16 years of age with the consent of a parent).
In Minnesota, judicial separation is called legal separation and it determines the rights and responsibilities of a husband and wife that arise out of the marital relationship. A decree of legal separation does not terminate the marital status of the parties and it is granted when one or both parties petition for a decree of legal separation and neither party contests the petition (section 518.06, Minnesota Statute). A decree of legal separation will address all of the issues that a decree of dissolution addresses, including custody, parenting time, child and spousal support and division of property, without dissolving the parties' marriage.
Finances/capital and property
Minnesota law presumes all property acquired during the marriage is marital property (section 518.58, Minnesota Statute).
A party to a marriage dissolution proceeding may claim property is non-marital because it was acquired before the marriage or by a specific gift or inheritance during the marriage (section 518.003, Minnesota Statute). If one party claims property is non-marital, he must prove the non-marital nature of the asset. Title and form of ownership are not evidence of a non-marital claim. Proof of a non-marital claim requires determination of value at the time of marriage or acquisition and tracing the continued existence of the asset until the time of division. The court, alternatively, has the option to award the other party up to 50% of the non-marital property to prevent an unfair hardship.
Property identified and classified as either marital or non-marital in nature is next valued. Non-marital issues need to be addressed because passive and active appreciation of the asset may have marital or non-marital features. The date of valuation is the day of the scheduled pre-hearing settlement conference, unless the parties agree otherwise or the court finds another valuation date is fair and equitable.
Minnesota is an equitable division property state. This means that property acquired by individuals during the marriage will be divided equitably and fairly by the court based on relevant factors, including (section 518.58, Minnesota Statute):
The length of the marriage.
Any previous marriage of one of the parties.
The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate liabilities, needs, opportunity for future acquisition of capital assets and income of each party.
Marital misconduct is not a factor that the court will consider.
The court may consider the contribution of each party in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, in addition to the contribution of a spouse as a homemaker. It is presumed that each spouse made a substantial contribution to the acquisition of property and income while they were living together as husband and wife. While equal division is not required to meet the equitable standard, it is the normal approach of the courts. A court's decision to divide property inequitably must be based on facts justifying such a division.
In general, the market value of an asset is used to value property for division in a marital dissolution (Prahl v Prahl, 627 N.W.2d 698 [Minn.App. 2001]).
The following aspects of property division frequently present controversy on which the higher courts have recently ruled.
Non-marital property is often combined with communal marital property with no anticipation of future division. On dissolution of the marriage, when the property is being divided, it is often difficult to properly determine allocation of marital and non-marital property.
Valuing and dividing a pension is generally left to the trial court's discretion (section 518.58, Minnesota Statute). In determining whether retirement benefits should be divided at the time of dissolution or on future receipt by the employee spouse, the trial court should consider the advantages and disadvantages of each option in light of the particular facts of the case. Dividing future retirement benefits acquired during the marriage at the time of the divorce is preferred, where there are sufficient assets available to divide the present value of retirement benefits (Taylor v Taylor, 329 N.W.2d 795 [Minn. 1983]). If the present value of a pension is speculative, the court have ruled that the proper method is application of a fixed percentage payable when received (Taylor at 799).
Valuation of a business in a marriage dissolution proceeding is always difficult because the business is rarely actually for sale.
The courts typically avoid continued joint ownership of any asset after a marriage has been dissolved. The outcome in a particular case will largely depend on the:
Nature of the business.
Transactional models available to accomplish the division.
Minnesota refers to spousal support (formerly alimony) as spousal maintenance. It is awarded based on the recipient's need and the obligor's ability to pay. A recipient is defined as an individual who lacks sufficient property or is unable to provide adequate self-support (section 518.552, Minnesota Statute).
Spousal maintenance can be temporary and rehabilitative or permanent, depending on the circumstances of the parties during the marriage. However, the law is clear that there must not be a preference for an award of temporary over permanent maintenance.
While marital misconduct is irrelevant in determining the amount and duration of spousal maintenance, the court will look at several other relevant factors in accordance with Minnesota's statutory guidelines. These factors include the:
Financial resources and obligations of the recipient.
Time necessary for the recipient to acquire sufficient education or training and the probability (considering the party's age and skills) of self-support.
Marital standard of living.
Marriage duration (including the homemaker's absence from employment, outdated skills and diminished earning capacity).
Recipient's loss of earnings and opportunities.
Recipient's age and physical and emotional condition.
Obligor's ability to pay and the contribution of each party to the amount or value of marital property. In addition to the recipient's contribution as a homemaker to help further the obligor's employment or business.
Any income-producing assets acquired as a result of the dissolution of the marriage will offset the need of the dependent spouse.
Spousal maintenance payments are tax deductible for the obligor, reducing his or her taxable income. However, these payments are considered as income for the recipient. Cost of living adjustments (COLA) can also be applied every two years.
Either party may seek to modify a spousal maintenance award if there is a substantial change in circumstances making the existing obligation unreasonable or unfair (section 518A.39, Minnesota Statute). A change that warrants modification can include:
A substantial increase or decrease in a recipient or obligor's gross income.
A substantial increase or decrease in the need of a recipient.
Receipt of public assistance.
A change in either party's cost of living as measured by the Federal Bureau of Labor statistics.
To avoid the risk of modification, the parties may negotiate a "Karon" waiver for the purpose of preventing any further court review of a spousal maintenance award. Governed by case law and statute, the judgment and decree must set out the condition to waive modification in addition to state specific findings (section 518.552, Minnesota Statute). The requirement must be fair, equitable, supported by consideration and full disclosure of each party's financial circumstances. A Karon waiver can only be obtained by stipulation between the parties.
Spousal maintenance awards terminate on the death of either party or remarriage of the recipient.
In 2004, the Minnesota Court of Appeals held in Peterka v Peterka, 675 N.W.2d 353, 358 [Minn.App. 2004], that maintenance is awarded so that the recipient and the obligor can maintain the standard of living they had while they were married, as closely as can be done fairly in the circumstances. Subjective determinations, such as standard of living and reasonable capacity for self-support, permit a wide degree of variability in spousal maintenance awards. However, it has become increasingly difficult to obtain an award of spousal support as a result of a recent decision of the Minnesota Court of Appeals. The court found "that wife's prospective ability to become partially or fully self-supporting, without a showing of her bad-faith unemployment or underemployment" is to be considered in all awards (Passolt v Passolt, 804 N.W.2d 18, 26 (Minn. Ct. App. 2011)).
In Minnesota, child maintenance is referred to as child support and is governed by section 518A Minnesota Statute and interpreted by case law.
Since 2007, child support has been set according to an "income shares" model requiring each parent to contribute to the child's support. Child support is based on both parties' gross income with income imputed to an unemployed or underemployed parent. Child support consists of three distinct components:
Work or education-related child care costs.
Basic support covers the child's housing, food, clothing, transportation, education costs and other expenses relating to the child's care.
To calculate support, it must be determined which party is the obligee and which the obligor. The parent with primary physical custody of the child is presumed (not conclusively) to be the obligee (section 518A.26 (subd 14), Minnesota Statute).
Each party's income for child support purposes must be determined. This includes any actual income (section 518A.29, Minnesota Statute) and any potential income (section 518A.32, Minnesota Statute).
All parents are presumed to be capable of working full-time (40 hours per week). A parent's income for child support purposes is reduced if that parent has another child in their care that does not share the same parentage (section 518A.33, Minnesota Statute).
Each parent's income for child support purposes is referred to as their parental income for child support (PICS). The following procedure must be followed to determine the basic support obligation (section 518A.34, Minnesota Statute):
The parents' PICS are added together to determine their combined PICS.
The combined PICS are divided by each parent's individual PICS to determine their percentage of contribution.
The combined basic support must be determined according to guidelines in Minnesota Statute section 518A.35.
The obligor's basic child support amount is that party's percentage of this combined basic support amount (see above).
The obligor's basic support obligation will be reduced if the parenting expense adjustment applies (section 518A.36, Minnesota Statute). This means that an obligor is entitled to a 12% reduction in basic support if they care for the child between 10% and 45% of the time (determined by the number of overnight stays).
If each parent spends between 45.1% and 50% with the child, parenting time is presumed to be equal. If this is the case, a different calculation is used, offsetting the two parents' respective obligations (section 518A.36, Minnesota Statute). This means that the higher income-earning parent will have an obligation to pay support to the lower income-earning parent.
Work or education-related costs
In determining childcare contributions, unless otherwise agreed to by the parties and approved by the court, the court must order that work or education-related childcare costs of shared children be divided between the obligor and obligee, based on each parent's PICS percentage (see above, Basic support).
Medical support means providing healthcare coverage or contributing to the cost of healthcare coverage, public coverage, unreimbursed medical expense and uninsured medical expenses of the shared child. The court must order that the cost of health care coverage and all unreimbursed and uninsured medical expenses under the health plan are divided between the obligor and obligee based on the parents' PICS percentage (section 518A.41, Minnesota Statute).
The Department of Human Services have developed a child support calculator where the above information is entered and child support is calculated (see www.childsupportcalculator.dhs.state.mn.us).
There are statutory guidelines for calculating the amount of child support that is considered to be appropriate. If the court deviates from this, it must produce written findings of the reason (sections 518A.37 and 518A.43, Minnesota Statute).
Modifications of existing child support orders are governed by Minnesota Statute section 518A.39. The party requesting the modification must show both a change in circumstances and that the changed circumstances make the existing order unreasonable and unfair.
Reciprocal enforcement of financial orders
Orders including financial provisions regarding child and spousal support are enforced under Minnesota Statute section 518C and the Uniform Interstate Family Support Act (UIFSA).
UIFSA has been enacted in every state in the US. According to the UIFSA, a support order or an order for income withholding, issued by a tribunal of another state must be registered in Minnesota for enforcement (section 518C.601, Minnesota Statute). A state, as defined by the UIFSA, includes a foreign jurisdiction that has enacted a law or established procedures for issuing and enforcing support orders that are substantially similar to the procedures included in either the:
Uniform Reciprocal Enforcement of Support Act (URESA).
Revised Uniform Reciprocal Enforcement of Support Act (URESA-revised).
Minnesota has not enacted URESA or URESA-revised. Georgia, Iowa, Missouri and Michigan are the only states that follow URESA or URESA-revised.
To register an order for child or spousal support in Minnesota, the following documents or information must be sent to the court:
A letter of transmittal to the tribunal requesting registration and enforcement.
Two copies, including one certified copy, of all orders to be registered including any modification of an order.
A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrears.
The name of the obligor and, if known, the obligor's:
social security number;
employment details (name and address of employer);
other source(s) of income;
property description and location if in the state and not exempt from execution.
The name and address of the obligee and, if applicable, the person or agency where the support payments are to be sent.
Once the information is received by the court, it must file the order as a foreign judgment (section 518C.602, Minnesota Statute). The judgment is then enforceable in the same manner and subject to the same procedures as an order issued by a Minnesota court.
Financial relief after foreign divorce proceedings
After a foreign judgment is registered, a Minnesota court will recognise and enforce the judgment. However, it cannot modify the order if the court that issued the judgment had jurisdiction (section 518C.603, Minnesota Statute). So generally speaking, thereafter a Minnesota court has limited authority to issue orders following a foreign order's registration (section 518C.611, Minnesota Statute).
Custody essentially has two elements, legal (authority over major decisions such as education or religion) and physical custody (section 518.003 (subd 3), Minnesota Statute). Legal custody is presumed to be joint, with certain exceptions (section 518.17 (subd 2), Minnesota Statute). Physical custody will be awarded based on a best interests standard (section 518.17 (subd 1), Minnesota Statute).
Custody has become a less meaningful term since 2006 when several new laws removed the financial ability to move with the child advantages. Most disputes relate to parenting time that are addressed in a parenting plan (section 518.705, Minnesota Statute) and through the use of early neutral evaluators that work with the parties to address parenting concerns.
In all cases with a history of domestic violence there will be some limitations or qualifications on custody and parenting time.
Third parties can pursue custody of a child who has resided with them without a parent present for certain periods of time (section 257C, Minnesota Statute).
Parenting time is established in the best interests of the child (section 518.175, Minnesota Statute). Parenting time cannot be restricted unless there is a specific finding by the court, after a hearing, that parenting time between the child and the parent is likely to endanger the child's physical or emotional heath or impair the child's emotional development. If such a finding is made, the court can:
Restrict parenting time.
Order conditions, such as supervised parenting time.
Deny parenting time entirely.
Grandparents have the right to secure visitation with grandchildren (section 257C.08, Minnesota Statute).
The US, and therefore Minnesota, is bound by the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). When a family is involved in an international child custody dispute, the Hague Convention will apply if both countries are parties to the treaty.
In the event the child's home country is not a signatory to the Hague Convention but a foreign child custody determination has been issued, there are several different processes for the foreign child custody determination to be recognised and the abducted child to be recognised and the abducted child ordered to be returned (chapter 518D, Minnesota Statute (UCCJEA)).
Leave to remove/applications to take a child out of the jurisdiction
The parent with whom the child resides can move out of a state with the child on agreement of the parties or by order of the court. The parent wanting to move has the burden of demonstrating that the proposed move is in the best interests of the child prior to the move.
Relocation with a child when a parent wants to move outside the state of Minnesota is governed by Minnesota Statute section 518.175 subd 3. The statute was enacted in 2006 and it overruled the previously common law rule on relocation (Auge v Auge, 334 N.W.2d 393 [Minn. 1983]). This rule held that it was presumed that the custodial parent of a child is entitled to permission to remove the child from the state.
Now a parent must show the court why a proposed move out of state is in a child's best interests. This applies unless there have been incidents of domestic violence before the actual move, and that the purpose of the move is not to interfere with the other party's parenting time with the child. The statute sets out eight best-interest factors that are unique to the consideration of a move out of state. If there has been domestic abuse, the burden shifts to the parent opposing the move.
To date, there is limited court guidance in interpreting this new statute. The state's Court of Appeals interpreted the relocation statute in its 2010 decision in Hagen v Schirmers, 783 N.W.2d 212 [Minn.App. 2010]. The court recognised that while one parent relocating to another state will cause the child's relationship with the non-relocating parent to deteriorate, one negative factor does not require rejection of a relocation.
Surrogacy and adoption
The US has no national policies governing surrogacy. Individual states determine their own laws regarding surrogacy.
Several states prohibit surrogacy, declaring all such agreements void and unenforceable as a matter of public policy. A few states make it a criminal offence to compensate the surrogate. Other states allow surrogacy but restrict it to married couples or to cases where at least one parent has a genetic link to the child.
However, the majority of states, including Minnesota have no laws regarding surrogacy, so families are in a state of legal uncertainty. For more information see Surrogacy Laws by State from the Human Rights Campaign (www.allaboutsurrogacy.com). Surrogacy contracts are created in Minnesota following complex legal analysis, which require separate representation by all parties to the contract.
Adoption is available to individuals and cohabitating couples, whether heterosexual or same-sex. Adoption is governed by Minnesota Statutes §§259.20 and the Minnesota Rules of Adoption Procedure. Case law has established that adoption statutes are to be liberally interpreted to accomplish their purpose (Petition of Jordet, 248 Minn. 433, 439 80 N.W.2d 642, 646). The best interests of the child are paramount in any adoption proceeding.
There are many different types of adoption, including agency placement, direct placement, step-parent, relative, co-parent, adult, foreign and foster parent.
A person who has resided in the state for more than one year can petition the court to adopt a child or an adult. A single person can adopt a child provided all the requirements for adoption are met. There is a preference for placement of a child with relatives.
In an agency or a direct placement adoption, an adoption petition must be filed within 12 months after the child is placed in the prospective adoptive home.
An adoption proceeding is commenced in Minnesota by filing a:
Petition for adoption.
Motion for a direct placement pre-adoptive custody order.
Motion for waiver of agency placement in the juvenile courts.
Certain documents must accompany the petition at filing, including (Rule 26.01, Minnesota Rules of Adoption Procedure):
The adoption study.
The biological parents' social and medical history forms, unless the petitioner is the child's step-parent.
Any requests to waive a post-placement assessment and report.
A background check.
Proof of service of the petition on any other parties, if service is required under the rules or statute.
When a child is adopted under the laws of a foreign country, the adoption is valid and binding under the laws of Minnesota if the validity of the foreign adoption is verified by the granting of an IR-3 visa for the child by the United States Citizenship and Immigration Services (USCIS) (§259.60, Minnesota Statute). If the adoption is recognised by USCIS, then it is recommended that the adoptive family obtains an amended birth record so that the child has a birth certificate from the US. This will be through petitioning the district court in the county where the adoptive parent resides, for a decree confirming and recognising the adoption. The Commissioner of Health can then issue a new birth record for the child. A court must issue this decree when it receives the following documents:
A signed, sworn, notarised petition requesting that the adoption is recognised.
A copy of the child's original birth record (if available).
A copy of the final adoption certificate or equivalent issued in the foreign jurisdiction.
A copy of the child's passport, including the US visa indicating IR-3 immigration status.
A certificated English translation of any of the above documents that are not written in English.
When a court issues a decree under this section, the court must forward a copy to the Commissioner of Health and Human Services.
If the foreign-born child has no actual birth record because of war in its place of birth, the courts generally accept an affidavit of the petitioner(s) stating the information they have about the child's birth or a statement from an orphanage where the child had been located.
An adoption of a child in the US under an IR-4 visa must be completed as an agency placement adoption. When a child is in the US illegally and there is a desire by the child's parents to have the child adopted, immigration issues should be addressed by a qualified immigration lawyer familiar with adoption to avoid deportation of the child or a risk that the child may never be able to become a US citizen.
There is very little legislation directly governing division of property for unmarried couples on the breakdown of the relationship.
Minnesota does not recognise common law marriage. However, Minnesota will recognise a common law marriage that was created in another jurisdiction before the couple moved to Minnesota (Laikola v Engineered Concrete, 277 N.W.2d 653, 655-56 [Minn.1979]) (quoting In re Estate of Kinkead, 239 Minn. 27, 30, 57 N.W.2d 628, 631 ).
Minnesota has what is commonly referred to as an anti-palimony statute (section 513.075, Minnesota Statute). This statute was enacted shortly after the landmark case of Marvin v Marvin in California 18 Cal.3d 660 (Marvin), which coined the term palimony. Palimony refers to the award of spousal support to a dependant spouse even when there was no marriage.
The Minnesota Supreme Court followed California's approach in Marvin shortly after in Carlson v Olson, 256 N.W.2d 249 [Minn. 1977](Carlson). In this case it was held that the district court had the equitable power to divide real and personal property in a division action between a couple who had lived together for 21 years as if married.
However, shortly following the ruling in Carlson, the Minnesota legislature attempted to exclude this type of legal proceeding. It enacted a statute that provided if sexual relations between the parties are contemplated as a man and a woman who are living together, or are about to commence living together, a cohabitation contract between them is not valid unless the contract is in writing and enforcement is sought after termination of the relationship (section 513.075, Minnesota Statute).
If the parties have not executed a written cohabitation contract, the courts have no jurisdiction to hear claims for entitlement to property based on cohabitation (section 513.076, Minnesota Statute). The terms of the statute are unclear. However, the wording of the statute suggests that it only applies to a man and a woman living together. So, arguably the statute does not bar the courts from reaching a conclusion similar to the Marvin case if it involves a same-sex couple.
Equitable remedies and limitations
In re Estate of Palmen, 588 N.W.2d 493 [Minn.1999], a statutory jurisdictional bar to recovery by one cohabitant from the other on an oral contract applies only when the sole consideration for the contract is contemplation of sexual relations out of wedlock. Therefore a claim by a cohabitant to recover, preserve or protect their own property, that was acquired independent of any service contract related to cohabitation, is enforceable.
In Obert v Dahl, 574 N.W.2d 747 [ Minn.App. 1998], unless a sexual relationship constitutes sole consideration for property agreements, cohabitants can maintain actions against each other under an anti-palimony statute. This is provided that contracts regarding the property and financial relations of the parties living together out of wedlock are enforceable (in writing and signed by both parties, regarding their own earnings or property, based on equitable theories such as constructive trust or unjust enrichment).
In re Estate of Eriksen, 337 N.W.2d 671 [Minn.1983], statutes governing financial and property agreements and contracts between an unmarried, cohabitating man and woman were held to not be applicable to the woman's claim to preserve or protect her own property that she acquired for cash consideration and wholly independent of any service contract related to her cohabitation. The creation of a constructive trust consisting of one-half interest in the home was required to prevent unjust enrichment of the estate.
Family dispute resolution
Mediation, collaborative law and arbitration
The majority of Minnesota's judicial districts operate under an early case management (ECM) model. After the filing of an initial pleading for divorce, the court schedules an initial case management conference (ICMC). At the ICMC, the judicial officer discusses and explains the various alternative dispute resolution (ADR) options available to the parties, including Early Neutral Evaluation (ENE) (see below, Early Neutral Evaluation (ENE)) and mediation.
The decision to participate in any ADR process is voluntary and one made at the ICMC by the parties.
Early Neutral Evaluation (ENE)
ENE is a voluntary, confidential process established in Minnesota that is intended to move families through the court system as efficiently and fairly as possible. There are two types of ENE:
Social Early Neutral Evaluation (SENE). This involves a team of two evaluators who meet with the parties and their attorneys to hear their respective positions. They then provide feedback, recommendations and possible settlement options regarding custody and parenting time based on their opinions.
Financial Early Neutral Evaluation (FENE). This involves one evaluator who meets with the parties and their attorneys to hear their respective positions. They then provide feedback, recommendations and possible settlement options regarding financial issues such as property division, maintenance and support.
At conclusion, (generally within 45 to 60 days), evaluators only report to the court whether the parties reached an agreement, not the terms of any agreement, unless approved by the parties. Agreements reached through SENE or FENE are binding only to the extent that the terms are in writing and signed by the parties.
Mediation is a voluntary, confidential process where parties have the option of participation with the assistance of their lawyers with the goal of reaching full settlement without litigation. Any agreements reached through mediation must be in writing and signed by the parties in order to be binding.
Two other ADR options available to parties outside of the ECM process are collaborative and co-operative law.
Collaborative law allows parties and their trained collaborative lawyers to enter into a formal agreement to attempt settlement without seeking court action other than for approval of a final settlement agreement. If settlement is not reached, the collaborative lawyers must withdraw and new counsel must be instructed before the parties participate in any further proceedings. A complete settlement agreement reached by the parties through the collaborative law process is generally submitted to the court for administrative review and approved for filing without a final hearing when all parties are represented by lawyers.
Co-operative law allows participants and their lawyers to enter into a formal and flexible agreement outlining the process, where the participants work towards reaching a final resolution.
If the participants fail to reach a resolution, the co-operative process allows participants to seek court intervention as necessary without retaining new lawyers.
Participants in the co-operative law process can also engage in litigation for a limited issue and return to a variety of negotiation models, including mediation, neutral evaluation or moderated settlement conference.
The complete settlement agreement reached by the parties through the co-operative law process is generally submitted to the court for administrative review and approved for filing without a final hearing if all parties are represented by lawyers. If all parties are not represented by lawyers, the court will hold a final hearing.
In Minnesota, all family law matters heard in the district court, including those requesting post-decree relief, are subject to alternative dispute resolution (ADR) processes under Rules 114 and 310 of the General Rules of Practice for the District Courts. In cases where there has been domestic abuse, contempt, or a public agency is either a party or providing services (such as in maintenance, support and parentage actions) they are exempt. In addition, unless ADR is not required, the moving party must file a Certificate of Settlement Efforts no later than 24 hours before the scheduled hearing, certifying that there was an attempt to resolve the issue(s) raised by the motion.
The various ADR processes in categories are specifically described as (Rule 114, General Rules of Practice for the District Courts):
Adjudicative. Arbitration; consensual special magistrate; summary jury trial.
Evaluative. Early neutral evaluation (ENE); non-binding advisory opinion.
Investigative and report process. Neutral fact finding.
Hybrid. Mini-trial; mediation and arbitration.
Other. Created by agreement between the parties.
This final other category provides the basis for collaborative law, also codified in Rule 111.05 of the General Rules of Practice for the District Courts, and co-operative law (see Question 24).
Civil partnership/same-sex marriage
Controversial areas and reform
The separation of marital property to be divided in the dissolution of the marriage from property acquired outside the marriage remains conflicted and in need of a logical and consistent approach.
The issues include separation of assets from the pool of income available for support, for example:
Are the retained earnings from a non-marital asset available for the support of the family?
Are the undistributed earnings available for division as a marital asset acquired during the marriage due to marital efforts?
There are also concerns about the minimal effort used to manage non-marital retirement accounts that result in appreciation, making the asset capable of having a marital character.
Child custody is no longer a substantive issue and many of the historical tensions around child custody have subsided. This is due to the enactment of the child support guidelines, which take into consideration the income of both parents and allocates child support by the percentage of time the child is with each parent, and also the enactment of a law that removes the exclusive authority that physical custodial parents had to relocate out of the state or county. The remaining task is allocation of parenting time, where many more parents are able to resolve concerns without high conflict. Legislation is pending to redefine the best interests standards.
Description. Official Minnesota statutes, session laws and rules can be found on this website, which are edited and published by the Office of the Revisor of Statutes.
Nancy Zalusky Berg, Founding Partner
Walling, Berg & Debele, PA
Professional qualifications. State of Minnesota, United States District, District of Minnesota, United States Court of Appeals; 8th Circuit, United States Supreme Court
Areas of practice. Family.
Laura Sahr Schmit, Associate
Walling, Berg & Debele, PA
Professional qualifications. State of Minnesota, US, Attorney
Areas of practice. Family.