Frequently Asked Questions about Family Law

Adoption

What is adoption?

It is a legal process, under state law, in which a person or couple assumes legal rights and responsibilities for a child who was not born to them. Normally the child's birth certificate is changed to reflect the names of the adoptive parents. If the child's natural parents are alive, those parent's rights must be terminated before the adoption can take place.

What are some advantages of adoption?

The child who is adopted becomes eligible to receive all the benefits of a natural born child, including inheritance and other rights. Normally the last name of the child is changed to relect that of the adoptive parent or parents. The act of adoption often helps to foster a "oneness" in the family.   
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What is a stepparent adoption?

This is what occurs when a person married to a child's natural parent goes through the legal process to adopt that child. The child's last name is usually changed to that of the adopting parent, if the parent is male.
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Are there disadvantages of adoption?

As in most things, the disadvantages will depend on the particular situation, and on a person's perspective. For example, if child support is being received from a natural parent prior to the adoption, the support for the child who is adopted will be discontinued, for the adoptive parent assumes responsibility for the child. The natural parent who formerly paid child support will no longer have that responsibility.
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What are the pitfalls of adoption?

A frequent pitfall or problem in a stepparent adoption is obtaining consent from the natural parent who gives up his or her parental rights. If the natural parent refuses to consent to give up those rights, a legal proceeding must be conducted to determine whether there is good cause to terminate the rights. The court may find good cause for terminating the parental rights if the parent has abandoned the child, has not paid child support as ordered for a certain length of time, or there are other reasons for the Court to find that parent is unfit.
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ADR

What is ADR?

ADR is short for Alternative Dispute Resolution This phase refers to various ways to resolve disagreements between people. Mediation and Arbitration are alternatives to litigation, or fighting it out in court. Mediation and arbitration are defined elsewhere in this section.
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Alimony

What is alimony?

Alimony is spousal maintenance which is money paid by one spouse to the other, because it has been ordered by the Court, or agreed to by the parties.
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Arbitration

What is arbitration?

It is a way in which disputes are resloved by an impartial third person chosen by the parties. Usually the parties will agree in advance to abide by the arbitrator's decision. Both parties have an equal opportunity for their testimony to be heard and other evidence examined prior to the decision being given.
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Assault

What is Assault?

An assault is the "threat of physical harm" coupled with the apparent ability to carry out the threat. No physical contact needs to be made.
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Child Custody

What is "legal custody"?

"Legal custody" refers to the care, control, decision making and maintenance of a child, as awarded to one or both parents in a divorce or separation proceeding.
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What is "physical custody"?

"Physical custody" refers to the parent or parents with whom the child primarily lives on a day-to-day basis. Often one parent has "Physical custody," although it may be shared by the parents where the parties agree, or are awarded "joint physical custody." In those situations, the child (or children) may spend about fifty percent (or sixty/forty, etc.) of the time with each parent.
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Child Support

What is child support?

It is a monthly financial obligation from one parent to the other, awarded in a dissolution, legal separation, annulment or parentage proceeding for the care, support and education of any child of the marriage or of the parties to the proceeding.
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How is the amount of child support determined?

One or both parents owing a duty of support to a child may be ordered to pay child support. The amount may be stipulated to by the parties, but must meet certain standards. The court has some discretion in determining the amount of child support, but must generally follow statutory guidelines and other factors. Minnesota statutory guidelines are found at Minn. Stat. 518.551
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Collaborative Law

What is Collaborative Law?

Collaborative law is a way of practicing law whereby the attorneys for both of the parties in a family dispute agree to assist them in resolving the conflict using cooperative strategies rather than adversarial techniques and litigation. Early non-adversarial participation by the attorneys allows them to use analysis and reasoning to solve problems, generate options and create a positive context for settlement. These attributes are not greatly utilized in the usual adversarial process. Normally, no court filing takes place until the Marital Termination Agreement is completed and signed by both parties.Back to Top
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Collaborative Team Divorce

What is Collaborative Team Divorce?

Collaborative Team Divorce is a team of divorce specialists working together with a divorcing couple. The Team consists of a trained collaborative attorney for each party, a neutral divorce "coach", a neutral financial specialist and a child specialist, when needed. The team approach helps contain conflict and assists the family to restructure from a single-family to a two-family system. The process reduces stress and conserves the entire family's emotional and financial resources.
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Common Law Relationship

What is a "common law relationship"?

This refers to a man and woman cohabitating together, without being married to each other. Since "common law marriage" is not recognized under Minnesota law, the parties do not have the legal benefits of a spouse should there be a separation of the parties, or if one of them should die. [Example: When a couple is married, and later divorces, there are legal presumptions as to ownership of property and assets gained by the couple during the years of their marriage. Even if one remained at home to care for children, that person would be entitled to one half of the "gains." On the other hand, if the couple has lived together without being married, the individual who remained at home would not be presumed to have half ownership in the earnings and gains of the partner who was employed.]
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Dissolution of Marriage

What is a marriage dissolution?

It is the termination of the marital relationship between a husband and wife, often referred to as "divorce".
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Divorce

How long will it take to get a divorce?

This is a difficult question to answer since every situation is unique, and will depend on a variety of factors, such as: whether both parties want the divorce, whether there are minor children; whether the couple is able to agree on every issue regarding division of property and other things. In some occasions a divorce may be obtained in as little as three to six months. However, if there are minor children and/or contested issues, the parties have divergent views on what is "fair" in the division of property, etc., the divorce may take months or years.
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Is there more than one way to get a divorce?

There are specific legal aspects to a divorce which are required by law, however, there are several "paths" to reach the ultimate goal of divorce. These range from simple agreement on all issues, "collaborative divorce" a process by which the couple ultimately reaches agreement on all issues, to "litigation" where the court makes decisions after the presentation of evidence at trial.
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What is a uncontested divorce?

One party files for divorce, and the other spouse does not fight it.
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What is a contested divorce?

The spouse against whom the divorce is filed "fights" to try to either prevent the divorce or prevent the other spouse from obtaining certain benefits from the divorce.
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Do both parties need to have an attorney?

It is highly recommended that each party has his or her own attorney.
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What is a "default divorce"?

A "default divorce" is one in which a spouse (the "Petitioner") files for divorce (either with or without attorney) and the other spouse (the Respondent) does not file an answer with the Court. Instead, the parties work out an agreement on all issues, and a "Marital Termination Agreement" signed by both parties, is filed with the Court. If a court appearance is required, only the party who filed the petition for divorce is required to appear.
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Divorce Education

What is Divorce Education?

Minnesota law requires divorcing parents, at least those involved in custody or visitation disputes, to complete divorce education classes before the divorce is finalized; the requirement varies from county to county. Unmarried people involved in paternity conflicts are also required to participate; children of divoring parents are required to attend classes in some counties.
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Domestic Abuse

What is domestic abuse?

Domestic abuse is physical or emotional injury perpetrated by one family member, upon others in that family or household.
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Health Care Directive

What is a Health Care Directive?

A Health Care Directive is a document otherwise known as a "living will" which normally gives a family member or friend health care "power of attorney" allowing that person to make health care decisions when the person executing the document is not able to do so; it usually contains instructions as to the individual's desires regarding resuscitation, pro-longing life, and other medical decisions.
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Legal Separation

What is legal separation?

Similar to divorce, legal separation is a process whereby a court determines the rights and responsibilities of a husband and wife arising out of a marital relationship. A decree of legal separation does not terminate the marital status of the parties, but is granted when the court finds that one or both parties need such a separation.
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Living Will

What is a living will?

A living will is a document which, if properly executed, directs medical personnel and others, regarding the wishes of an individual as to resuscitation, prolonging life, and other medical issues. This may also referred to as a "Healthcare Directive."
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Marital Termination Agreement

What is a Marital Termination Agreement?

This is an Agreement signed by both parties to a divorce, which includes their agreement on each issue, as required by Minnesota law.
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Mediation

What is a Mediation?

Mediation is a method of resolving a dispute between parties. It is usually informal, and one or more "mediators" will listen as the parties present the facts of their case, under relaxed rules of evidence. The parties may, or may not, be represented by attorneys. Usually, the mediator's decision is not binding.
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Paternity

What is a paternity?

The state of condition of the father; the relationship of a father. A paternity suit is a court action to prove that a person is the father of a particular child.
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Power of Attorney

What is Power of Attorney?

This is a legal document authorizing another to act as one's agent in business, banking, and or other transactions. The agent is attorney-in-fact and his power is revoked on the death of the principal.
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Pro Se

What is a "pro se" litigant?

This is a person who represents him or herself in court, without assistance of an attorney.
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Trust

What is a "Trust"?

A trust is a right of property, held by one party for the benefit of another. A variety of trust instruments are available, depending on the needs and desires of the parties. A "grantor" is the one who provides money or property to establish the trust; a "beneficiary" is one for whose benefit the trust is established; the "trustee" carries out the responsibilities of the grantor by caring for, investing, protecting, and distributing the proceeds of the trust, in compliance with the expressed wishes of the grantor. The trustee may be one or more individuals, or a corporate entity such as a bank or trust company.
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Will

What is a Will?

This is generally defined as an instrument through which a person disposes of his property, to take effect after his or her death. A person can normally revoke one Will, and execute another, as long as he or she has the mental capacity to do so.
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Why do I need a Will?

It is only through a Will, that an individual can establish who he/she desires to have appointed as Guardian for minor children, who may serve as Personal Representative of probate proceedings, and who will be the recipients of that person's property (real and personal), after his or her death.
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