Domestic Abuse and Divorce in Minnesota
UPDATE: March 2024
Victims of domestic violence have many difficulties on their plate at any given time: dealing with the physical effects of abuse, seeking help with mental trauma, and finding a positive care situation for children. Going through a divorce can often exacerbate these issues.
Emotions run high in almost any divorce process, and the increase in tension can make a bad situation worse. If you are a victim of domestic violence and are considering a divorce, or are already started on the divorce process, here are some things you should keep in mind that can be used to help.
Let’s start with talking about what Domestic Abuse is in Minnesota. Domestic abuse is NOT emotional abuse, or financial abuse, just physical abuse. This is very important to understand since the court won’t issue an OFP/HRO for either of those types of abuse.
Domestic abuse has to be either physical injury or assault or a reasonable fear of physical injury.
Orders for Protection
If you already have a lawyer helping you with your divorce, talk to him or her about the possibility of getting an order for protection while your divorce case is ongoing. An order for protection is the Minnesota term for what you might have heard of as a restraining order. If you want to read about it the statute is Minn.Stat. 518B.01.
The order can, in some cases, be entered “ex parte,” which means your partner won’t be in court when the order is granted and won’t have a chance to present his or her own evidence (at that hearing). An ex parte order for protection can be fairly wide-ranging; it can protect both you and your children from abuse, and it can require the abuser to stay away from designated areas such as your workplace.
If the judge finds that an ex parte order is unwarranted, you can still have a court hearing at which you and your future ex-spouse can both present evidence, and an order for protection can be entered after that hearing if the judge agrees that one is necessary.
In Minnesota, even if you are awarded an ex parte order, your spouse has the right to a hearing, to present his or her side of the case. So remember, if you can’t handle going to court and testifying (it can be frighting) think long and hard about if you want to file for an Order For Protection.
If your partner is charged with a crime relating to the abuse, for example for violating an order for protection or for assault, then the judge in the criminal case may enter a domestic abuse no-contact order. Violation of this type of order has serious criminal penalties, so these orders tend to be obeyed.
Harassment Restraining Orders
Are similar to order for protections except there isn’t a threat of violence, just a continued pattern of harassing behavior. This can be complex as there is not magic number of calls or texts. I’ll go more into HRO’s (what we call Harassment Restraining Orders) in a future post.
What If You Don’t Have A Divorce Lawyer?
Well, obviously the best bet is if you have a divorce lawyer to help you out. If you don’t have one don’t worry, family law in Minnesota is really full of what we call “self help” resources. An example is, first and foremost call Legal Aid for help.
In Minnesota, we don’t have a generic “Legal Aid” our system is broken down into regions with Mankato and Rochester falling under SMRLS or Southern Minnesota Regional Legal Services.
The next option is looking at the internet, Minnesota has a whole collection about how to deal with physical abuse and you can find the instructions and forms for it by clicking on the link.
Effect On Divorce Case
Domestic abuse will also have an impact on your divorce. For one thing, it could impact which parent is awarded legal custody. The judge will have to start with the presumption that custody shouldn’t be awarded to the abuser.
If the abuse involved the children, it could also result in a restriction on the abuser’s parenting time as the court MUST look at the impact of the abuse and the child’s best interests. It’s important to note that it’s a end all be all, meaning if you get an OFP or HRO then the case is over and you get custody, it’s only one of the 12 factors the court has to look at to determine child custody during your divorce proceedings.
However, as far as the division of marital property goes, Minnesota courts will divide property without reference to marital misconduct (we’re a no fault divorce state) ,so incidents of domestic violence are not a basis for one spouse to argue that they are entitled to a greater share of assets and really only impacts a custody decision by the court.
The same goes for any alimony or spousal support award since the court can’t look at any sort of physical danger or abuse for those issues.
Conclusion
If you have an abusive spouse, you do need to address the matter, keep yourself safe, get help.
Information obtained in mankatofamilylaw.com may contain knowledgeable content about Minnesota Family Law that may be considered beneficial to some; however, in no way should this website or its contents be considered legal advice. Mr. Kohlmeyer is a Minnesota licensed Attorney and cannot provide legal services or guidance to those outside of Minnesota. If you wish to retain Mr. Kohlmeyer as your Attorney in your Family Law matter, contact 507-205-9736
Is narcissisism, emotional-, psychological-, and financial- control considered abuse that is recognized in court? I won’t go into all the details but I recognize my spouse’s behavior as all that. We don’t have a prenup so do I have a right to go for my spouse’s pension and my spouse go for my premarital ROTH? We keep separate money accounts, have only 2 bills in both our names, but my spouse has several personal bills–will I be accountable for my spouse’s “toy” bills too? my spouse’s kids destroyed $500 worth of my personal belongings, can I get that back (note: I had reimburse my spouse $250 for what my own kids did over the years)?
No, I’m afraid not, the court generally looks at just physical abuse. It looks like you do need to talk to a divorce lawyer and go into details.
Good luck!
I was married on Aug. 3rd, 2013 to what I found out within the 1st two weeks was an abuser. He began by putting his fist in my face and calling me every name in the book. He even began telling me that he was really an atheist (when before he said he was Catholic and etc.) ….BUT that I would never REALLY know what he was (creepy). Well, the list goes on of what he did. He said he’d get counseling and go to church with me…so I did try staying with him, but ended up leaving 2 times then the third I stayed away……anyway, I was with him for about 4 months all together. He is now stalking me and I am trying to get help to file a restraining order. I myself have no job and am on M.A. with 2 legitimate disabilities that are documented with my doctor (fibromyalgia and BPD). Can I get the court filing fee waived here in Minnesota? AND do I have to appear with him in court? How is this handled differently here in MN with abuse cases? (we have no children obviously and no assets to split)
Thank you!!
I’m sorry about your situation, sounds terrible!
The short answer is yes, you can get the filing fee waived by requesting IFP status, or in forma pauperis. The court administrator has the forms very easy to fill out.
Next, do you have to appear in court? Probably yes, if the a hearing is requested then yes, you’ll need to go to court and prove your being harassed or that you need an Order for Protection.
I would suggest you talk to your local domestic violence prevention/support group. In Mankato we have CADA here that can help.
Good luck!
Jason