MN Divorce Petition

A Minnesota divorce proceeding is started by the service of a Summons and Petition for Dissolution of Marriage.  “Service” means that the documents (the Summons and Petition) need to be personally handed to the recipient by someone other than his or her spouse.

A Summons is a document that in effect gives the district court jurisdiction over the recipient.  In Minnesota divorce proceedings, the Summons will state that the recipient has 30 days in which to serve an Answer to the Petition.  (Note: in other civil lawsuits, the recipient of the Summons typically has 20 days to Answer.  This is true of paternity suits, which fall under the civil lawsuit rules and not the divorce rules.)

If the recipient of the Summons and Petition does not serve an Answer, or otherwise appear, within 30 days after service, he or she is in default.  This means that the initiating party can approach the court for relief without any further notice to the party receiving service of process.

In Minnesota, a divorce petition contains very general information about the parties and the marriage–names, birth dates, addresses, names of children, information about employment, assets, etc.  The Minnesota divorce petition also includes a very general prayer for relief.  A “prayer for relief” is a statement of the various things the Petitioner would like the court to do: end the marriage, award child custody and child support, award spousal maintenance (or not), divide property, etc.

Unlike most states, and unlike the federal system, in Minnesota, civil lawsuits (including divorces) are started by service of process, not by filing pleadings with the court administrator.  Often, an attorney will start a lawsuit by service of process, but refrain from filing the pleadings with the court administrator, to see whether the case can first be resolved through negotiations.  This is called “pocket filing.”

Generally, pocket filing is a good practice because it can lead to settlements.  However, when cases are settled quickly, this often means that only one party actually needs to pay the court filing fee.  (In most Minnesota counties, the court filing fee for each party is $400.)  Because the court system is so severely underfunded, there is discussion about doing away with pocket filing and requiring each party to pay the court filing fee.

If you have been served with a divorce Summons and Petition in Minnesota, don’t mess around.  You need to serve an Answer within 30 days.  Or, you need to obtain a written extension of time to serve an Answer from the attorney representing the Petitioner.  If you do not do either of these things, you will lose.  You should not wait until the last minute to hire an attorney.  While preparation of the Answer may only take an hour or two, most attorneys are busy and need time to fit the work into their calendars.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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