Minnesota Divorce and Family Law Blog

When One Attorney is Involved in a Divorce

In Minnesota and most other states, one attorney cannot represent both parties in a family court proceeding. (Do not be misled by the movie Juno!) Yet it is common for divorces to happen with only one attorney involved. When one attorney is involved, that attorney represents one of the parties; the other party waives counsel.

This situation begins with the premise that both parties are entitled to have an attorney. Commonly each party has an attorney representing them, and advising them regarding their interests. Along with the right to counsel comes the right to waive counsel. If both parties are unrepresented, both are waiving their right to counsel. (In many instances, a party who waives counsel will have consulted - but not retained - an attorney.)

If one party is represented, the other party can choose not to have an attorney. But the party who chooses not to have an attorney should not look to the other party's attorney for legal advice or guidance as to whether or not to accept a settlement proposal. An attorney involved in the process should provide representation and advice to only one party.

Serving the Petition Starts the Divorce

When someone wants to start a divorce proceeding, they need to formally serve process upon the other party. The divorce proceeding does not start because the couple has separated or because a court file has been opened. When the responding party receives the divorce petition from the initiating party, the divorce is officially pending.

Formal service of process is accomplished simply by handing the documents (Summons and Petition) to the responding party. It must be performed by an individual, age 18 or over, who is not a party to the proceeding. A spouse cannot serve their own spouse with the divorce papers. Typically, a courier, neighbor or family member serves the documents; these days, the involvement of a sheriff's deputy for this kind of service is rare.

Alternatively, the responding spouse may admit or acknowledge service. The Admission of Service, which must be in writing, makes it unnecessary to involve a third party. Oftentimes, the initiating party will mail the documents to the responding party with a blank Admission of Service for the responding party to sign and return in the mail.

Recognition of Parentage

When a child is born to a couple that is not married, it is important for both parents to sign off on a Recognition of Parentage form, for custody and parenting time purposes, as well as for child support purposes. A father's right to custody or parenting time is established easily by a Recognition of Parentage, whereas without a Recognition of Parentage, the father is more likely to need genetic proof of paternity.

If a married couple separates, each party has the right to custody and parenting time by law, due to the marriage. If an unmarried couple with a child separates, the Recognition of Parentage provides a basis for determining custody, parenting schedule and child support issues. Without the Recognition of Parentage, determination of those issues is delayed while parentage is proven unless the parties both agree not to contest parentage.

Home Alone 2: I Want the House

When a wife and husband no longer want to be married, it can be assumed that they no longer want to live together. However, the economic reality is that maintaining two households is substantially more burdensome than maintaining one. In many instances, separated couples remain living together, against the will of one of the parties. That is to say, one spouse (or both) wants to stay in the house, and get the other spouse to move out. But the "unwelcome" spouse stands their ground, and refuses to move out.

Neither party can exclude the other from the house without a court order. If the issue comes before the family court, the judge is likely to work out an arrangement whereby the couple is not living together. The family court judge will want to avoid the potential that the couple's "peaceful coexistence" will deteriorate into something less peaceful, particularly if children are involved.

But the court will also balance the interests of safety and diffusing tension against the economic considerations. Those considerations include avoiding the burden of maintaining two households, if at all possible, particularly if the house must be sold. In many cases, long-term necessity requires selling the marital home so that both spouses can downgrade to something more affordable.