Legal Separation Or Divorce?

Clients sometimes inquire as to whether they should seek a legal separation rather than a divorce. Accordingly, a comparison of the two is warranted.

Unlike a divorce, a legal separation does not dissolve a marriage. Rather, a legal separation is defined as "a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship." It is a way of resolving many issues involved in a divorce such as dividing property, possession of the house and vehicles, responsibility for debts, spousal maintenance, child custody, parenting time, and child support, without terminating the marriage. Unlike in divorce, however, the separation decree does not resolve these issues with finality. Rather, the separation determinations are temporary and can be changed completely should a divorce later occur.

In Minnesota, a proceeding for a legal separation cannot be "converted" into a proceeding for a divorce. If a client first files for legal separation, he or she will have to have pleadings prepared and pay a $400 filing fee. If the client later decides to divorce, he or she will have to have new, different, pleadings prepared, and pay another $400 filing fee. A new court file will be opened with a different court file number. The client will likely even have a different judge.

If what a client really wants is a divorce, a legal separation is not recommended. The purpose of a legal separation is to allow one to remain married even if he or she needs to be separated while working toward reconciliation or because the client does not want to divorce for religious or philosophical reasons. For example, one might seek a legal separation from a spouse who is working through a gambling problem to achieve legal distance from the potential financial repercussions of the problem.

Because of the ease with which divorces can be obtained since Minnesota became a no-fault divorce state, legal separations have become rare. Nevertheless, the option does remain available as an alternative to divorce, particularly if there is a possibility of reconciliation.

Paul Overson