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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.

A legal separation does not end the marriage. Rather, a legal separation is the division of spousal rights and responsibilities as determined by the courts. Problems that may arise in a divorce, like those related to debts or assets, may meet a resolution through legal separation. Though, where a divorce potentially ends these issues, a legal separation does not. 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. A legal separation will keep your marriage together while you work toward possible reconciliation or personal problem resolution. 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.

Legal separations are rarer every year, especially being that Minnesota is now a no-fault divorce state. Still, it a legal separation is a reasonable option for those looking to achieve reconciliation without the finality of divorce.

Paul Overson