This is such a common question I thought I would start out the blog by answering what the difference is between a divorce and a legal separation in Minnesota. My standard quip is as a divorce lawyer I love doing legal separations because I get to do the same case twice (and charge accordingly!). That’s sort of my wise-ass answer. The real answer is, most people really don’t need to do a legal separation and if they are choosing to end their marriage, may as well go ahead with a divorce, with a few caveats listed below.
A quick summary of what a divorce is, a divorce is a dissolution of the marriage whereby you divide assets & debts with your spouse as well as deal with custody and parenting time with the kids. Once you are divorced in Minnesota you can get remarried since you will be truly single. In legal parlance that means the “bonds of marital union” will be dissolved and the marriage is no more.
A legal separation is not quite so simple, it is somewhat similar to a divorce, whereby you divide assets & debts, deal with custody and parenting time, but at the end you are still married to that person, which means you can not get remarried until you go through the divorce. Usually a name change is not done during a legal separation (but can easily be done during a divorce). This can cause extra expense and extra stress if you later decide to get remarried or finalize your divorce, so you need to decide carefully if you really want a legal separation. Remember that a legal separation is not any simpler or less work than a divorce, it just means you can’t remarry at the end of the case.
In my opinion, there are very limited times when a person should seek a legal separation instead of a divorce in Minnesota, here they are:
1) You Are New To The State And Really Want To Be Divorced
In order to get divorced in Minnesota you must have resided in Minnesota for at least 180 days before filing for divorce. There is no such requirement to do this for a legal separation. This means if you move to Minnesota you would have to wait 6 months before filing for divorce, but you could file for a legal separation the next day.
If a person does want to be separated but hasn’t resided in Minnesota for the required 180 days, then It’s not uncommon for a person to start a legal separation then convert it to a divorce once the residency requirement is met. Usually there is not an additional fee, just some paperwork. Now, I am not generally opposed if people really want to do their own legal work, but this is a bit technical (and not that expensive) so please consider hiring a divorce lawyer if you are going to do this.
I should point out that the residency requirement is a little more detailed than just 180 days, but it’s a good starting point to understand the concept.
2) You Are On The Fence And Question If You Really Want A Divorce
If you have questions about if you feel you really need a divorce and have serious concerns about your spouse spending money or selling your assets or even if they are taking on a fair amount of debt, it might be prudent to file for a legal separation and then you can at least make up your mind at a later date.
You see if you file the legal separation and start that process that often will create the Valuation Date, this is the date that any debt that is acquired later will probably be considered non-marital property. Also, if you are getting an inheritance or a coming into money this might be an a good option to consider as well.
The reason why is that there will then be a legal separation date, this is not the same as moving out of the house, where any extra debt (or assets) may very well get to be claimed as non-martial when the divorce finally goes through.
3) Religious convictions
Lawyers try and stay out of this arena and for good reason, we know the law but are not experts in faith. If your beliefs absolutely forbids divorce, legal separation may be an option.
One note is that legal separation has nothing to do with an annulment under Catholic doctrine and may very well have no impact with your faith. For that you should consult your priest or pastor for help in this area.
Cost of legal separation
Some people think it is easier (which means cheaper) to do a legal separation, maybe just sign a quick document and get it notarized? If only it was that simple! The short answer is it takes the same amount of work to do a legal separation as a divorce. You will still have to address child custody, division of property, alimony or spousal maintenance, child support, insurance for the kids, and division of real property (land/ houses) everything that goes on in a divorce you will have to address in a legal separation, but you will still be married to that person.
While legal separations have their places they usually are not the best option if you are considering separating or leaving your spouse in Minnesota. If you are debating getting divorced here are some divorce tips you need to know.
As always, seek the advice from a GOOD Minnesota divorce lawyer.
P.S. If you want to read the Minnesota Statute it’s Minn. Stat. 518.06
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