Legal Separation Vs. Divorce in Minnesota: What’s the Difference?
In Minnesota, legal separation and divorce are two legal processes of ending a marriage, but they have different consequences and processes. In a divorce, the parties completely sever financial and legal ties. This complete severance prevents either spouse from making financial decisions about the other’s finances in the future. Moreover, in the event that either spouse dies after finalizing a divorce, the other spouse is generally not entitled to an inheritance or death benefits from the other spouse. In a legal separation, however, the spouses remain legally married. This means that even after a legal separation, the financially dependent spouse still has a claim to the income, assets and benefits of the employed spouse in the event of his or her death. Another distinction in the difference between legal separation and divorce is the waiting period to remarry. Once you become legally divorced, you can remarry as soon as you want. But with a legal separation, you cannot remarry until you get a divorce. A third difference is that one spouse does not need to "prove" the other spouse had fault, such as adultery, for that spouse to obtain a legal separation. A legal separation is a good option for many people because it allows them to live apart from their spouse while still maintaining the legal protections of marriage. People who pursue a legal separation may be unsure about what they want to do or be unsure about getting a divorce for religious reasons . At times, people want to obtain legal separation so that they can retain health insurance benefits on their spouses’ plans. People may also need to separate for reasons that go beyond just wanting to end the marriage. For example, some couples separate to divide child-rearing responsibilities or to address one spouse’s substance abuse problems. Others may separate because they have unresolved financial issues or to provide more time for them to figure out their marital status. It is possible for a couple to reconcile while living separately, and that may allow the parties to give their marriage another try. If the couple’s attempts at reconciliation fail, a legal separation may be a good way to transition to a divorce. While legal separations offer many benefits such as health insurance coverage and protecting a financially dependent spouse from having to needlessly make major financial decisions, they do have some limitations. Because the parties stay legally married, it is often unnecessary to request the court to order terms that are normally part of divorce proceedings. In a legal proceeding, most petitions ask the court to address issues such as asset distribution, debt responsibility, child custody and child support or spousal support. These issues do not need to be dealt with in legal separation proceedings because the couple is not yet divorced. Because of this, divorces are usually more costly than legal separations.
Minnesota Legal Separation Requirements
To file for legal separation in Minnesota, there are a number of eligibility requirements that you must meet. First, there is a residency requirement, meaning that one or both spouses must have lived in the state for a certain period of time in order to file. Typically, Minnesota law requires that at least one spouse be a resident of the state for at least 180 days immediately prior to filing for legal separation, or that both parties be domiciled in the state for at least 180 days prior to the commencement of the legal separation action. It may also be possible to obtain an "ex parte" (spoken in front of a judge) temporary legal separation order without meeting the residency requirements, which can be good if you fear for your safety.
Second, in order to file for legal separation, one or both spouses must be legally married and not planning to get divorced. This means that there is no set waiting period or length of separation required before filing for legal separation – you can file for legal separation as soon as you want, but there is no advantage in doing so before you have lived separate, apart, and away from each other for a period of time that has some impact on your life.
The "separation" period generally only serves as a "wake-up call" to your spouse – a chance for you to sit down, talk, and try to work things out. You should not expect it to fix your relationship if it hasn’t in the past. It’s useful, however, in targeting and dealing with the issues driving the problems in your marriage during this time. A "separation" is not a license to date other people – the goal here should be to attempt a reconciliation, if possible.
As a third important eligibility factor, at least one of the spouses must pray (i.e. request) the court for an order of legal separation. In practice, this means that the petition for legal separation must be signed by at least one spouse and filed with the proper district court in Minnesota.
How to File for Legal Separation in MN
To file for legal separation in Minnesota, a party must submit specific paperwork to the appropriate court. The court will have particular rules and forms that need to be followed and completed. While there may be subtle differences between the paperwork required in each county, for the most part, the required documents will be similar among all counties. The steps to file for legal separation in Minnesota are outlined below:
Prepare the necessary petitions and forms. Make three copies of each document that has been completed. File the petition and forms in the appropriate court. The court staff will add any additional documentation that is needed to the case and will assign a court file number. You also must serve the summons and petition on your spouse. There are multiple methods for doing this, but most of the time spouses either agree on a method or hire the sheriff’s office to serve the documents. The court requires that the petitioner provide proof that the service has been completed. After service or if the respondent signed a Voluntary Appearance and Answer form agreeing to the separation, subsequent steps are required per county rules. For example, in Dakota County, Minnesota, within 60 days of filing: The judge may schedule a settlement conference, which a judge or referee hears in order to help parties reach a settlement before they go to trial. If the parties are unable to resolve their issues through the settlement conference, a judicial officer will hold a pretrial conference and decide what motions are appropriate prior to trial. Often, this trial is set for a future date. The trial is not a jury trial, and the judge will decide all issues raised in the case based on the evidence heard during the trial. After the trial, the judge will issue a decision that will become the terms of the legal separation.
Documents Necessary to File for Legal Separation
In the state of Minnesota, the first step to filing for legal separation is to submit a Petition for Legal Separation. This legal document will include information about you and your spouse, each parties addresses, and where you were married, where your children were born, and where the marriage currently resides. Any joint bank account information should be included in the petition, along with current income for you and your spouse. You will also have to include assets above an approximate value of $500. Any individual debts must be listed individually and will require the same relevant information as above. You can file the petition if you and your spouse have no children or if the children are over age 18. However, children under 18 years of age must be included within the petition as it is being formed.
Legal Separation Agreements: Things to Keep in Mind
The key to a successful legal separation is a solid legal separation agreement. To that end, it is critical that the legal separation agreement covers the following general components:
Child Custody
The separation agreement should address child custody and child support matters if the couple has children under the age of 18. Due to the emotional and financial costs often associated with child custody issues, it is recommended that parents take care to ensure their matters are as complete and accurate as possible as soon as the need arises. Child custody and child support arrangements must be approved by a judge, so an incomplete separation agreement can lead to issues such as parental rights being adjusted by a family law judge.
Spousal Support
Not all legal separation agreements cover spousal support , but for those that do, it is important that the terms are well defined, including whether there is a temporary or permanent basis for alimony, whether there is any set duration, and why the spousal support is being granted. Without this level of detail, the agreement could be challenged in court later, likely to the detriment of the payor.
Division of Assets
In the event that a divorce occurs after the legal separation, the separation agreement will have significant impact on how assets and debts are divided. This is why it is important to cover the following conditions:
Because the legal separation agreement plays such an important role in the future if a divorce does take place, it is in the best interest of both parties to ensure that it is drafted as thoroughly as possible.
How Mediation Can Aid in Legal Separation Process
Mediation is often the preferred method of conflict resolution for couples seeking to file for legal separation in Minnesota. It can be a valuable tool in simplifying the process and reaching an amicable agreement between both parties before filing an official legal separation petition with the court. In some cases, couples are required to attempt negotiation through mediation prior to a separation. Minnesota law even requires that parties attempt alternative dispute resolution (ADR) prior to filing any action in certain cases where custody or parenting time is in dispute.
Mediation is a process where a neutral third-party, the mediator, assists both parties with negotiation. The mediator has no decision-making power over the outcome of the separation, but is there to guide the parties through the process. Mediation can be conducted with both parties present in one room or with each party present via phone. While it is not required that both parties be represented by a divorce attorney during this process, having counsel present can serve as an important asset in the process. A mediator can act as an information source for both parties, but they cannot give legal advice. This is especially important to keep in mind when discussing legal issues such as property division, child custody and spousal maintenance (alimony) calculations.
There are several advantages to mediation over court proceedings when filing for legal separation according to the Minnesota Department of Health. Going through the separation process outside of the courtroom helps to keep couples out of contentious court battles and can help to preserve relationships as it allows couples to have more control over the outcome of their separation agreement, and often can save both parties legal fees associated with separation. Mediation resolutions highlight the interests and needs of both parties to help establish a solution that best serves the future of the couple. It also helps to provide a comfortable environment where private matters can be discussed confidentially.
Minnesota Legal Separation: How Much Does It Cost?
The costs involved in filing for legal separation in Minnesota can vary, but it is important for intending filers to understand their potential outlays. Here is an overview of the most common expenses incurred when seeking legal separation.
Filing fees
When filing for legal separation, individuals must submit documents to various Minnesota courts. The vast majority of legal separation and divorce forms must be filed with the District Court in the county where the filer resides. However, there are a handful of other forms that must be filed with separate agencies, including the:
Legal separation forms that are filed with the District Court are accompanied by a $300 filing fee. However, many counties charge an additional service fee. This additional expense usually amounts to $60 to $70. However, some counties charge up to $100.
Attorney fees
Because legal separation resembles divorce, legal separation filers incur similar attorney fees. While the nature and extent of the legal work needed depends on each case and how thoroughly filers are able to communicate, most legal separation filers experience the same general costs.
Many legal separation filers agree to solely handle the financial aspects of their separation agreement on their own. But this is only recommended in the simplest, least asset- and debt-burdened cases.
Filing fees and attorney fees are not the only expenses that must be paid when filing for legal separation. Additional expenses include the costs of pre-separation planning, legal separation mediation and filing for divorce.
Pre-separation planning
Essentially a pre-divorce divorce, pre-separation planning involves filing a priority claim against property and asset values. The filing fee for this process is typically $20.
Legal separation mediation
Many couples opt for divorce mediation due to its ability to resolve matters such as alimony and child custody without going to court. However, in some jurisdictions, legal separation filing requires mediation. The fees for this process vary significantly, but legal separation filers should anticipate spending $3,000 or more on mediator fees.
Filing for divorce
Legal separation covers multiple aspects of divorce, which is why some filers choose to handle their legal separation and divorce together. However, while filing for legal separation only requires paying filing and mediation fees, filing for divorce requires additional costs. For example, parties filing for divorce must also pay $40-$70 to efile their petitions. There is also a $325 court filing fee for divorce, plus a $1 fee for the use of the Electronic Filing System.
Legal Separation in MN: What Happens Next?
After obtaining a legal separation in Minnesota, both spouses are required to continue adhering to the terms of the separation agreement or court order. This involves fulfilling child support obligations, adhering to visitation schedules, and abiding by any other court provisions. Any failure to comply in this regard could result in monetary contempt sanctions or other legal repercussions.
Unlike divorce, if you and your former spouse do not decide to go ahead with a divorce, your legally separated status does not automatically terminate . According to divorce laws, a divorce must be initiated within two years of legal separation (i.e., filing for the divorce).
In general, a legal separation essentially allows for either spouse to eventually or easily convert the separation into a divorce. Under the current Minnesota law, legal separation proceedings do not affect divorce proceedings. This means a judge cannot dismiss a divorce proceeding simply because that action was preceded by a legal separation proceeding. Both spouses also have the right to file for divorce at any time.