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Divorce vs Legal Separation - What is the difference?

Recently, I have been presented with the same question on multiple occasions: "What is the difference between divorce and legal separation?" First, it is important to clarify the terminology. Dissolution of marriage is divorce, it is the process of terminating the marriage, including the rights, benefits, and privileges that the spouses share. Legal separation, at least in Minnesota, preserves ...

Recently, I have been presented with the same question on multiple occasions: "What is the difference between divorce and legal separation?" First, it is important to clarify the terminology. Dissolution of marriage is divorce, it is the process of terminating the marriage, including the rights, benefits, and privileges that the spouses share. Legal separation, at least in Minnesota, preserves the marital relationship and is a court determination of the rights and responsibilities of the spouses arising out of the marital relationship. Separation and legal separation are often incorrectly used interchangeably. Generally, separation simply means the spouses are no longer cohabitating, that one or both have moved from the marital home. Separation does not require a court order or court action. Separation preserves the marital rights, benefits, and privileges. However, an extended separation can complicate a future divorce or legal separation, especially if minor children are involved.

Legal separation is far less common than divorce. Historically, parties would seek a legal separation instead of a divorce for religious reasons. Today, although legal separation is still sought for religious grounds, legal separations have become more common for insurance purposes. A minority of health insurance plans do allow a spouse to maintain coverage following a legal separation, as the parties are technically still married. Under federal law, legal separation is a qualifying event which typically results in loss of coverage; however, some policies are drafted to allow the legally separated spouses to maintain coverage.

Legal separations are granted by the court by a Judgment and Decree for Legal Separation. The document will state the rights and responsibilities of both parties and, if applicable, custody and parenting time designations. The decree may include an outright award of property to a spouse or provide a spouse exclusive use and enjoyment of property. As legal separations are uncommon, Minnesota has few statutes or case law that clearly define the procedure.

Unless there is a specific reason for a legal separation, I am generally cautious about recommending a legal separation and for good reason. If spouses legally separate, and in essence end their relationship, the parties are still legally married. If either spouse decides to pursue a new partner and eventually wants to marry their new partner, the spouse will need to pursue a divorce first. Depending on the length of the legal separation, financial matters, and dynamics between the soon-to-be ex-spouses, the divorce may become significantly more complicated than a traditional divorce proceeding.

There are legitimate and good reasons to pursue a legal separation. However, there are many obstacles to avoid while pursuing a legal separation. A proposed Judgment and Decree for Legal Separation drafted by the attorney should be mindful of the benefits intended for legal separation, while clearly outlining the rights and responsibilities of parties when it comes to assets and debts. If you have questions regarding divorce, separation, or legal separation, it is important to consult with an experienced family law attorney to ensure you receive accurate information, so you can make informed decisions. Our firm, Sheridan & Dulas, P.A., strives to make that information available to those who need it most. Please contact our firm today at 651-686-8800 to schedule a free consultation.

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