Minnesota Divorce and Family Law Blog

Why 50-50 Property Divisions Are Common, But Not Required

Minnesota law requires that the division of a marital estate to be "fair and equitable."  The law does not require the division to be EQUAL.  But often equal is fair, and anything other than equal is not fair.  Here is why: if the parties reach an out-of-court settlement, they will negotiate the terms.  Both spouses will have to assent to the agreement.  It would not be surprising for the wife to be unwilling to accept less than half.  It would not be surprising for the husband to be unwilling to accept less than half.  Consequently, many out-of-court settlements constitute a 50-50 division of the property, which a reviewing court judge would find is consistent with the "fair and equitable" requirement.

Similarly, if the case goes to trial, for the court to decide, it would not be surprising for the court to find no reason to award the wife more than half, and it would not be surprising for the court to find no reason to award the husband more than half.  Consequently, many court decisions reflect a 50-50 division of the property, which would pass muster by a reviewing appellate court as consistent with the "fair and equitable" requirement.

In neither instance is the 50-50 division REQUIRED.

Conversely, a division of property that is OTHER THAN fifty-fifty may be consistent with the "fair and equitable" requirement, but the basis for that conclusion will need to be spelled out in more detail, because on its face it may appear to favor one party over the other.  This need for more detailed provisions for the non-equal-but-fair-and-equitable division goes for both out-of-court settlements and court-ordered divisions.

Default Divorce

If you start the divorce process, your spouse has thirty days to respond to the petition.  What happens if the responding spouse does nothing during the thirty-day period?  Technically, the responding spouse is in default.  

That means that the responding spouse has forfeited the opportunity to participate in the divorce process. This situation may sound advantageous, since it means that the court can enter the decree without hearing the responding spouse's "side" of the story.  But there are drawbacks.  Most family court judges prefer to have both spouses involved in the divorce process, because of the likelihood that a defaulting spouse will approach the court later for relief.  Many issues, such as the parenting schedule for minor children, or the comprehensive disclosure of all debts, cannot be fully addressed without both parties being involved.  With one party absent, those issues are unresolved, possibly reserved by the court for future determination, and both the petitioning spouse and the court are left in limbo. So, if the divorce is finalized as a default, the responding spouse may come forward later, wanting to reopen the case.  Even if the responding spouse has no valid excuse for failing to respond, that will not necessarily prevent the responding spouse from CLAIMING to have a valid excuse for failing to respond.  If the court "hears out" the responding spouse, the petitioning spouse is likely to be drawn into in an additional "chapter" of the family court process.

Since the family court would rather open the case and shut the case once, without reopening the matter, the family court would rather get it done "right" the first time.  That can be hard to do without one spouse's participation.  It is harder to have all of the relevant information properly disclosed and considered in the file without both parties actively present in the case.  

Ultimately, it is better to have the case done by default than not at all.  If extra effort is made to involve the responding spouse, to no avail, then both the court and the petitioning spouse can be satisfied that proceeding by default is the right way to conclude the case.