Minnesota Law
Minnesota Family Law
- Family Law
Family Law
Marriage in Minnesota
Who Can Marry
An unmarried man and an unmarried woman, age 18 or older, are free to marry without permission from parents, guardian, or judge. Men and women between the ages of 15 and 18 can marry with the consent of a parent, guardian, or a judge in juvenile court. Same sex marriages are not recognized. Brothers are not allowed to marry their sisters, uncles their nieces, aunts their nephews, and first cousins are not allowed to marry each other. Minnesota is obligated by the United States Constitution to give full faith and credit to any marriage recognized by any other state, so persons who cannot marry in Minnesota may travel to another state to marry and, on return, their marriage would be recognized by the State of Minnesota.
License Requirements
Marriage licenses can be obtained through the clerk of court in any county in Minnesota. The application must be accompanied by a licensing fee of $65. The applicants must provide proof of age (birth certificates) and proof that any preceding marriages have ended either through death or divorce (death certificate or divorce/dissolution judgment and decree).
The application provides an area to designate the desired names of the parties after the marriage, however, neither party need change his or her name. Blood testing is not required in Minnesota.
Time Limits
There is usually a five-day waiting period after application before the license is issued. This waiting period can be waived by a court order of a county or district judge in response to extraordinary circumstances. Once issued, the marriage license is valid for six months and can be exercised at any time by the individuals before an authorized official anywhere in the state.
An Individual's Rights Within Marriage
Spouses have an obligation to support one another financially. Necessities such as food, clothing, and shelter are the responsibility of both spouses. An individual spouse may build credit or incur debt independently of the other spouse for non-necessities, or the couple may incur such debt together. When one spouse dies, the surviving spouse typically has the right to receive property from his or her spouse. It is difficult, though not impossible, to disinherit a partner to a valid marriage.
Non-Marital Cohabitation
Common law marriage is a marriage created by an agreement between two people to marry followed by cohabitation. Although common law marriages are a way for a couple to become married in some states, Minnesota does not recognize common law marriages. Even if a couple presents themselves as husband and wife, a marriage is not valid until the couple obtains a license and exchanges vows. People who are not legally married are not entitled to spousal rights, are not bound by spousal obligations, and are viewed as mere cohabitants.
A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support after January 1, 1994. A new Minnesota law provides that parents who are three months behind in child support payments could lose their driver's licenses. Barbers, contractors, doctors, and others who have licenses to practice their jobs could lose their occupational license if they are three months behind.
Spousal maintenance can be either temporary or permanent. If a party agrees to give up a claim for spousal maintenance it may not be renewed at a later date. Like child support, spousal maintenance must be maintained despite any disagreements between the ex-spouses. A recently enacted state law provides for revocation of occupational licenses and/or seizure of state tax refunds of persons delinquent in their spousal maintenance payments.
A legal separation involves many of the same procedures as divorce, however, the couple remains legally married and remarriage is forbidden. Court decisions made in a legal separation are not final because either party may still seek a dissolution if they so choose. As with a dissolution, the grounds for a legal separation are an irretrievable breakdown of the marital relationship. Often a legal separation is sought by those whose religious beliefs prohibit divorce but who still desire child support and spousal maintenance.
In Minnesota, all agencies specializing in adoption must be licensed by the Minnesota Department of Human Services. Not all licensed agencies are equal, however. There is a great deal of difference among the agencies as to services offered, adoptive clients served, geographic area served, fees charged, and age of the child sought to be adopted. When dealing with an adoption agency, it is best to ask questions to determine whether the needs of the adoptive parents and the birth parents fit the services offered by the agency.
Minnesota has a statewide adoption exchange which lists all children available for adoption.
Open and closed adoptions are not the only two options available to parents. Open and closed adoptions exist at opposite ends of a continuum of choices. The degree of openness in an adoption is determined by the parties involved and may be quite complex. Most important to a successful adoption is that all expectations regarding openness and the role both sets of parents will play are clearly communicated and understood by all parties. A good adoption facilitator can be of assistance to help in the communications. Adoption attorneys can assist in ensuring the most secure adoption plan in the best interests of the child.
Domestic abuse, by definition, is perpetrated by any adult who is now or used to be married to the victim, who is a parent to the victim, who is unmarried to, but who lives or used to live with the victim, or who is parent to a minor or an unborn child. Usually, the term domestic abuse is used to refer to abuse of a woman by her current or former husband or boyfriend. There are several options available to a victim of domestic abuse. A victim can file criminal charges, file a civil suit seeking damages, or seek an order for protection against the abuser. In ordinary circumstances, the first step is to seek an order for protection from the Family or County Court.
When completing the paperwork, it is helpful if the abused person or his or her guardian has a picture of the alleged abuser. If a picture is unavailable, a description of the individual is needed along with work and home addresses for the alleged abuser. A prepared statement of all incidents of abuse, both past and present, including dates and notes can help the official to document the need for protection for the judge.
For a court order to be granted, a petition must be supported with evidence of the alleged abuse, so the abused person or the abused person's guardian must fill out an affidavit describing the events surrounding the abuse and need for protection. If necessary, the abused person or his or her guardian can request a temporary (or ex parte) order for protection. This order might be necessary when an abused person is in danger and the protection is needed immediately.
Regardless of whether the accused person attends the court hearing, the abused person or his or her guardian must be present. The hearing is the opportunity to present evidence of abuse and for the alleged abuser to defend himself or herself. It is at the hearing that the person alleging abuse should substantiate the abuse with medical records and police reports.
At this point, the judge may rule on the matter or continue the matter for a later date. If the judge rules on the matter, he or she can grant the petition or dismiss the matter. In order to grant the petition, the judge must believe that protection is necessary for the safety of the person alleging the abuse. The order for protection is usually in effect for one year. If the judge dismisses the matter, he or she does not believe that the request for protection is supported by the evidence. A continuance merely means that the judge believes that more time is necessary to evaluate the case, either for decision-making or collecting evidence.
Additionally, the court may order a trial for cases where the abuse is denied and may determine temporary custody and visitation of minor children. Courts look to the specific facts of the case and will issue orders in accordance with the circumstances of the case. Other common orders are for restitution, for counseling and/or evaluation, prohibiting any contact, for the accused to refrain from visiting the school and/or workplace of the person alleging abuse, and for child support and spousal maintenance.
Symptoms of mental injury occur in response to repeated and habitual emotional abuse by the person responsible for the care and nurturing of the child. They may include emotionally disturbed behavior, low self-esteem, inappropriate interaction with others, inability to communicate with others, extreme hostility and anger, anti-social behavior, and speech and learning disorders.
A person in a position of authority over the child includes a parent or person acting in the role or place of a parent. A person in the position of authority also includes anyone responsible for, either directly or through another person, the care, supervision, health or welfare of the child, no matter how brief, at the time of the abuse.
Mandatory reporters are obligated to report to the child protection unit of the local social service or law enforcement agency any abuse and neglect known or believed to have occurred in the last three years. If a mandatory reporter fails to report an instance of known abuse or neglect, he or she is guilty of a misdemeanor.
Reporting child abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect, will not make a person subject to any lawsuit for mistaken allegations.
The name of the individual reporting the abuse or neglect must be kept confidential by the child protection workers and can only be released by consent of the reporter or by court order.
The initial objectives of the investigation by child protection workers are to evaluate the existence of any physical or emotional damage to the child, identify the risk of harm to the child, determine the urgency of the claim, and decide whether immediate intervention is required. As part of the investigation, the agency also interviews the alleged offender. After these factors have been assessed, the goals are to determine whether the family is a candidate for treatment and to initiate and monitor treatment and its progress. If the worker decides that judicial intervention is needed, an action is initiated in juvenile or family court. If there is not enough evidence of abuse, the case will be closed.
Vulnerable adults are any persons over the age of 18 residing in, or receiving services from a hospital, care facility, nursing home or other similarly licensed facility. Other adults, regardless of whether they live in or receive care from such facilities, are also considered vulnerable adults. These individuals include persons who are challenged with physical, emotional, or mental impairments. Vulnerable adults may be victims of physical, mental, emotional, and sexual abuse, and of neglect similar to the abuse and neglect of children.
A mandatory reporter who fails to report a known instance of abuse or neglect is subject to a penalty of up to 90 days in jail and a $700 fine. In addition, a mandatory reporter may be subject to damages suffered by the vulnerable adult resulting from the failure to report.
Minnesota Legal Services Coalition, 726 Minnesota Building, 46 Fourth Street East, St. Paul, MN 55101; (612) 228-9105 Ext. 108 (Getting a Divorce: A Basic Guide to Minnesota Law (5th ed. 1994)).
Minnesota State Bar Association, 514 Nicollet Mall, #300, Minneapolis, MN 55402; (612) 333-1183 or 1-800-882-MSBA (free booklets: Adult Abuse and Neglect in Minnesota; Child Abuse and Neglect in Minnesota; Coming of Age in Minnesota; Getting a Divorce in Minnesota (in English or Spanish); Getting Married in Minnesota).
Divorce in Minnesota
Grounds for Dissolution
Minnesota has a no-fault divorce law. Thus, the only ground for dissolution of a marriage is a showing by the parties that there has been an irretrievable breakdown in the marital relationship. Because divorce is no-fault, a court cannot consider either spouse's fault in causing the divorce when making its determinations of custody, visitation, or other dissolution matters.
Issues of Dissolving a Marriage
Parties to a marriage dissolution can agree with one another how to handle their affairs. Matters on which the parties disagree, however, must be decided by a court. Court-ordered guidelines generally include instructions on child custody, visitation rights, child support, spousal maintenance, and division of marital property.
Child Custody
Child custody is determined by a court based upon the best interests of the children. There are two different types of child custody: sole and joint custody. Sole custody gives one parent complete responsibility for raising the children. In joint custody, both parents share that responsibility. Joint custody can be either joint legal custody or joint physical custody. In joint legal custody, the children reside mostly with one parent, known as the custodial parent, who is primarily responsible for the routine decisions affecting the children, but both parents share the responsibility for making important decisions regarding the children. In joint physical custody, each parent is involved in both the day-to-day and the more significant decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each.
Visitation
Visitation by the parent without custody is strongly encouraged in Minnesota. Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents can make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation or orders that the non-custodial parent be allowed reasonable visitation. Certain other people, such as grandparents, who have close relationships with the children, may also be allowed some form of visitation.
Child Support
Child support is financial assistance provided by the non-custodial parent to help support the children. Factors affecting the amount of child support a court orders include the parent's income, the children's needs, the number of children, and the needs of the parents. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation.
Spousal Maintenance
Spousal maintenance is financial support provided by one party to an ex-spouse. Either spouse can seek spousal maintenance from the other. Factors that a court evaluates in setting spousal maintenance include the standard of living enjoyed during the marriage, the relative incomes or earning potentials of the parties, and the needs of each party.
Division of Property
Courts attempt to divide marital property on a fair, although not always equal, basis. Typically, all of the couple's assets are eligible for division between the two parties. Special attention is paid to the particular needs of the parties in making the division. Property belonging solely to one spouse prior to the marriage, or gifts such as an inheritance, even if received during marriage, may be classified as non-marital property. Non-marital property is usually returned to the party from which it originated and not included in the division of marital assets.
Annulment and Separation
An annulment is a court finding that a couple's marriage never legally existed. Such a finding may result in cases of fraud or when proper consent for the marriage was not obtained. These relationships are said to be voidable because either party can ask that the marriage be annulled. The requirements for annulling a marriage are similar to those for obtaining a dissolution. Some marriages, such as those between close relatives, are against the law and are said to be void. Void marriages need not be annulled because no marriage ever existed, so there is no marriage to annul. It is important to note that a legal annulment is different from an annulment granted by a particular church. A religious annulment is spiritual, rather than legal in nature, and does not impact the legal status of the marriage. Likewise, a legal annulment may not satisfy the requirements for a religious annulment.
Antenuptial Contracts
An antenuptial contract, also known as a prenuptial agreement, is an agreement between parties to a marriage regarding what rights each has to the other's property upon dissolution of the marriage, legal separation, or death. Antenuptial contracts are valid and enforceable in Minnesota if:
Adoption
Adoptive Placements
An agency placement of a child for adoption is one made through a state licensed adoption agency. An independent placement is one arranged between the adoptive and birth parent(s) without assistance of an agency. In this situation, the parties have come together through other means-usually through mutual friends.
Open Versus Closed Adoption
If the adoptive and birth parents know each other and remain in touch after the adoption, the adoption is said to be open. If they do not know each other and do not stay in touch after the adoption, it is said to be closed.
Paternity
Abuse
Domestic Abuse
Domestic abuse is the generic heading for harmful behavior, both actual or threatened, between family or household members. It includes actual or threatened physical harm, sexual abuse, and assault to the extent that immediate physical harm is feared. The term domestic abuse includes emotional abuse, without an immediate fear of bodily harm. This distinction is important when evaluating one's alternatives for judicial intervention.
Orders for Protection
An order for protection is a court order prohibiting the person accused of committing abuse from continuing the abuse against the person bringing the action, the petitioner, or against any minor children in the household. The order forbids the alleged offender, the respondent, from physically harming or causing the fear of harm. The order is enforceable throughout the state of Minnesota, however, it will not necessarily be enforced by officials outside of the state.
Requirements
Orders for protection can be obtained at the county courthouse or at the county domestic abuse office in the county where the victim lives. To protect the victim and substantiate his or her claim against an alleged abuser, it is important that application be made as soon as possible after the abuse occurs. There is no fee for an order for protection, and the county is obligated to provide the public with assistance in completing the paperwork.
Hearing
A hearing on the matter is normally set within 14 days. The purpose of the hearing is for both the abused person and the person accused of abuse to be able to tell the judge of the events surrounding the alleged abuse. In order to notify the person accused of the abuse of the hearing, the sheriff of the county in which the accused lives serves the papers on the accused.
Violations of Orders for Protection
When an order for protection, either temporary or permanent, is granted and the person prohibited from contacting the abused attempts to violate the order, the police should be contacted through the 911 emergency system and notified of the order. Once the order is enforced and the alleged abuser removed, a complete police report should be filed documenting the incident. Violation of an order is a criminal offense for which charges may be brought.
Changing an Order
If circumstances arise making a change in the order necessary, the county domestic abuse office or county clerk must be contacted to set another hearing. An appointment will be set to request a hearing and the process is similar to that listed above. If an extension of the protection period is needed, a victim or guardian should contact the appropriate officials approximately three weeks before the current order expires.
Elder Abuse
Abuse of older persons technically falls within the definition of domestic abuse, and such persons are granted the same legal protections as other domestic abuse victims. However, Minnesota also has specific laws that protect adults who are vulnerable because of a mental or physical disability, or because they are dependent on others for their care. Intentional failure to provide necessities, such as food and clothing, is criminal neglect, as is financial exploitation of a vulnerable adult. Intentional abuse is a felony that carries stiff penalties. Health care professionals who suspect abuse of adults are required to report their suspicions to the state.
Child Abuse
Child abuse is a serious problem that can take many forms.
Neglect
Neglect is the failure of a person responsible for a child to supply necessary food, clothing, shelter, or medical care when that person is able to do so, or failure to protect the child from imminent and serious danger to his or her physical or mental health. Neglect may only be charged against a person who is legally responsible for the child. Neglect does not, however, cover instances where a parent or guardian in good faith relies on spiritual prayer for a sick child.
Physical Abuse
Physical abuse is any physical or mental injury, actual or threatened, inflicted upon a child by other than accidental means by a person responsible for the child's well-being. Physical abuse also includes any physical or mental injury that is unexplainable by the child's medical history and any means of discipline or control not authorized by law as acceptable for use with persons who are mentally challenged or impaired.
Mental Injury
Mental injury is any harm done to the child's psychological capacity or emotional stability. Evidence of such harm is any observable or substantial impairment of the child's ability to function normally as compared with other children of the same culture.
Threatened Injury
Any statement, overt act, condition, or status that would be considered a risk of physical or sexual abuse constitutes threatened injury.
Sexual Abuse
Any person in a position of authority over a child who subjects the child to sexual contact commits sexual abuse. Sexual abuse can also include involving a child in prostitution or pornography. Sexual contact includes any touching, fondling, or molestation, clothed or naked, of intimate parts of the child or the abuser. Intimate parts include the genital area, groin, inner thigh, buttocks or breast of a person.
Prenatal Exposure to Controlled Substances
Non-medicinal use of a controlled substance by a pregnant woman constitutes prenatal exposure to controlled substances. This form of abuse is subject to the same mandatory reporting requirements that apply to other child abuse. Persons not required to report the abuse may voluntarily and confidentially report the abuse when they know or have reason to believe that a pregnant woman is using a controlled substance.
Abuse Reporting Requirements
Requirements for reporting abuse depend on whether the victim is a child or an adult.
Reporting Child Abuse
Neglect and abuse are leading causes of death in children. By law, certain members of society, by virtue of their professions and positions, are required to report child abuse. Persons required to report abuse, known as mandatory reporters, include doctors, nurses, teachers, police and law enforcement officials, child care providers, and clergy members. Virtually anyone who works directly with children to provide physical and mental care, protection, caregiving, and supervision is required to report actual or suspected instances of child abuse.
Contents of a Report of Child Abuse or Neglect
Child protection workers must request information from a person reporting child abuse. To expedite the attention given to a child in an abusive or neglected situation, the reporter will want to have the following items ready for report:
It is important to remember that if the child is in immediate danger, help should be sought through law enforcement and the emergency 911 system.
After an Abuse/Neglect Report
Depending upon the urgency of the report, an investigation will be conducted by a welfare agency worker with no connection to the parties. Only if a child is in immediate danger can the child be removed against a parent's or guardian's wishes. A child may be removed temporarily from an immediately dangerous situation, however. A court order is necessary within 72 hours to keep a child against the wishes of a parent or guardian.
Investigation of Child Abuse/Neglect
In investigating a report of child abuse or neglect, child protection and social service workers must conduct a face-to-face interview with the child and are not required to obtain parental permission before interviewing the victim of the alleged abuse. By the time that the investigation concludes, however, the parent or guardian must be informed that the child has been interviewed.
Vulnerable Adults Act
Minnesota has enacted legislation to protect vulnerable adults from abuse through the Vulnerable Adults Act.
Mandatory Reports
Certain individuals are obligated to report abuse or neglect of vulnerable adults. These individuals include professionals or employees of a hospital, care facility, or other such state-licensed agency.
Voluntary Reports
Others who know of or suspect abuse or neglect can make a report of any known or suspected incident of abuse or neglect. Anyone reporting in good faith is immune from civil liability; a reporter may rely on not being sued by the alleged abuser for damages that occur due to a reasonably believed suspicion of abuse or neglect. A person will, however, be held liable for making a false report where the report was made with knowledge of its falsity or with a blatant disregard for its truth or falsity.
Contents of a Report of Abuse/Neglect
A report of an incident of abuse or neglect of a vulnerable adult may be made to the local social service agency, the local law enforcement, the county sheriff's office, the Minnesota Department of Human Services Division of Licensing, or to the Office of Health Facilities in the Department of Health. As with child abuse and neglect, the protection worker must ask for information in order to investigate a claim.
Effect of Filing a Report
The local welfare agency investigates reports of abuse and can intervene to protect a vulnerable adult. The reporter's identity cannot be revealed to the alleged abuser without the reporter's consent or a court order. In addition to the investigation by the welfare agency, an investigation will likely follow by the Department of Health under its authority over health care facilities.
Reaching the Age of Majority in Minnesota
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