In Minnesota, you can legally separate from a spouse through a divorce or legal separation. If you and your spouse are considering your options, you may be wondering: what is the difference between a legal separation and a divorce?
In Minnesota, these options are very similar — they cost about the same and take about the same amount of time. However, unlike a divorce, a legal separation does not end a marriage. To determine which option is the best for you, it’s essential to understand the differences between separation and divorce.
What is a legal separation?
A legal separation is a different status from “physical separation,” when you and your spouse live apart. Because the law does not require you to live with your spouse, you do not need to file court papers to physically separate. Contrary to popular belief, this does not mean that you have abandoned the marriage or the home. Physically separating from your spouse does not waive your rights or obligations to interests in property.
So, what is considered “legally separated” in Minnesota?
In Minnesota, legal separation is very similar to divorce. Both require serving and filing a petition in court, custody, parenting time, child support, and spousal maintenance orders (if applicable). Legal separation and divorce both require similar investments of time and money.
If you have a legal separation, it won’t hold the same effect as a divorce because you are still married and will be treated as in many legal contexts, such as filing your income tax return and owning real estate. If you decide you want to end your marriage and cut all ties with your spouse, you will need to go through the court process to get divorced.
Should I get a divorce or a legal separation?
If a legal separation and a divorce take a similar amount of time and money, why would I choose a legal separation over a divorce?
Because a legal separation does not eliminate the marriage relationship, you and your spouse may go this route if you want to legally divide your obligations and responsibilities while you decide if you want to reconcile your marriage. A legal separation can resolve many of the issues involved in a divorce without terminating your marriage. These issues include the division of property, responsibility for debts, child custody and parenting time, child support, and spousal maintenance
Some couples may also choose legal separation because of religious beliefs or moral values against divorce. There may be tax or other financial reasons for a legal separation in a few cases.
If you and your spouse decide to separate but cannot agree on these matters, a legal separation may help you reach a fair agreement without requiring you to end your marriage. It can also protect your interests in what would otherwise be a period of informal physical separation.
It’s important to note that what happens during any separation, legal or physical, can affect your divorce if you choose to file for one down the road. For example, your relationship with your child during your separation will impact a judge's custody decision. If you had no contact with your child during a six-month separation period, it might be difficult for you to obtain custody in your divorce. This is another reason why a legal separation can be beneficial, even if you plan to divorce at a later date.
A legal separation is also much easier to reverse than a divorce. Divorce terminates a marriage permanently, requiring the two of you to remarry and eliminating the agreements from the divorce without also creating a prenuptial agreement.
What is a separation agreement, and do I need one?
You and your spouse can negotiate a separation agreement with the help of a mediator or an attorney. The difference is a mediator cannot offer you legal advice. A lawyer can help guide you through this process, explain how the terms might eventually impact a divorce, and prepare the documents for you.
Your separation agreement can address issues about child custody, support, insurance premiums, responsibility for debts, who should pay the mortgage on the marital home and possession of marital property. Your agreement may also put a timeline on your separation.
Note that you don't have to enter into a separation agreement to be separated. However, it's worth writing out an agreement that both of you sign to avoid confusion and disagreement. And, if you ultimately decide to divorce, you can use the agreement as a starting point for drafting a marital settlement agreement.
How do I file for legal separation in Minnesota?
A legal separation case begins with filing the separation papers in the district court in the county where one of the spouses resides. The papers include the original Summons, Petition, and an Affidavit of Service.
"Serving" these documents means that you must provide them to the other side in a specific manner required by Court rules.
Can you be separated without moving out?
You don't always have to live in separate residences to be separated—you might choose (for financial or other reasons) to remain in the same house but live as roommates rather than as a married couple.
My husband or wife moved out — what are my rights?
Contrary to popular belief, moving out of a house does not mean that the spouse who left abandoned the marriage or the property. It also does not prevent the leaving party from returning to the home unless there is a Court Order preventing their return. Depending on how bills are paid during that spouse’s absence, it could financially impact the outcome if one party stopped contributing but it will not waive that person’s rights completely.
Do you have questions?
If you still have questions, we’re always here to help. It’s essential to make an informed decision because divorce and legal separation each affect your rights. A consultation with us is always free, and you’ll walk away with a clear understanding of your options and how an attorney can help you.
