What is a Legal Separation in Minnesota?
Legal separation—or the process of an individual filing for legal separation in Minnesota—is not divorce. A couple may seek out a legal separation because they are not yet ready to get divorced. When there is a request for legal separation, the matter is initiated by filing a Complaint for Legal Separation in the District Court, along with a Summons. It is important to understand that a legal separation does not prevent a subsequent divorce proceeding.
A legal separation is a temporary living arrangement that is often enacted in order to preserve a couple’s rights during that period of separation. During the legal separation, the couple may decide to go their separate ways , or they may decide to work on their marriage, which will allow them to reconcile their differences and reunite.
Separation does not change the legal status of a person, it simply means that the person is legally separated from their spouse but has not yet been issued with a divorce decree. Legal separation may be necessary to obtain enforceable provisions for child support, child custody, visitation and the division of property during a marriage with children. By law, property acquired during a marriage is considered marital property. This means that any property acquired after the date of marriage (excluding inheritances, gifts, and other property received as an individual) is also considered marital property.
Legal Separation Requirements
Legal separation is a court process which will have the parties preparing a petition and their evidence and will be adjudicated by the court. The legal requirements for separation are essentially the same as a divorce and this area of the law is highly contested in terms of whether a divorce or a separation is right for you. For instance, a separation is not the time when parties get back together. If you decide to get separate, you are making a commitment to be separated from your spouse. Sometimes people do think that separation is a trial run and they can get back together after that. Unfortunately separation has a definitive beginning and a definitive end and one party or the other will be moving on at the end of the process.
The legal requirements for a separation include : residency requirements and paperwork requirements in terms of documentation. Minnesota has a 180 day residency requirement. That means one party in the marriage has to reside in Minnesota for at least 180 days before filing the Petition for Legal Separation. If a couple is in the military with Minnesota as their home state or they are Minnesota residents stationed elsewhere, they can file for Legal Separation as long as they have been residents of Minnesota for 180 days at any time in the past. In terms of paperwork, there are mandatory forms drafted by the State of Minnesota that need to be completed. Well, the work is not easy, if you have a clear idea of what your issues are and you have an understanding of the steps in the process, it can be completed.
How to File for Legal Separation
The first step is to file a "Petition for Legal Separation" with the District Court in the County where you or your spouse reside. If you have children, you must also file a "Summons" with the Petition.
The Petition for Legal Separation should contain the following information:
a statement that at least one of the parties has resided in the State of Minnesota for at least six (6) months immediately prior to the date of filing the Petition;
all steps taken to attempt to resolve the issues between you and your spouse and why the marriage is irretrievably broken or why a Legal Separation would be in the best interests of the parties, including an explanation that a Legal Separation is NOT a divorce; and
a request for relief from the Court. This can include the custody of any minor children, child support, use of marital property, maintenance (i.e. spousal support), division of marital property, etc.
Once the Petition is filed, you must serve the other party with the Summons and the Petition. There are two ways of accomplishing this:
1. Mail or Personal – Send the Summons and Petition to your spouse via certified mail OR have an adult serve them in person. If you serve by certified mail, you need the defendant to sign the return postcard that the post office sends back to you, making sure that your spouse signs it. If the service is done by a third-party, he or she will file an affidavit attesting to the fact that the documents were properly served and mail a copy of that affidavit to the other party; OR
2. Waiver and Acceptance – Mail a packet to the other party with a cover letter and the Summons and Complaint asking your spouse to sign and return a "Waiver of Service" Form. If the Waiver and Acceptance Form is signed, you can then file it with the District Court along with a "Certificate of Representation" Form signed by your spouse. Both of these forms can be obtained from the Court or printed from the Court’s website. Requesting a waiver and acceptance is a time-saver, as it eliminates the need to pay the sheriff’s filing fee for serving the paperwork via certified mail or personal service.
Once the Summons and Petition have been served on your spouse, you must then file a form called the "Certificate of Service" with the District Court. This form is very simple and must be filed with the Summons and Petition in order to proceed with the case. In addition to this initial filing, you will also need to file a "Certificate of Representation" with the Court reiterating that you are representing yourself in the proceeding.
The Court will then issue a "Notice and Acknowledgment of Receipt" which you must provide to your spouse. Alternatively, your spouse can sign a "Return of Acknowledgment of Service" Form.
If service is completed and the above notices are filed, the divorce process begins, just like a regular divorce. The other spouse then has 30 days from the date of service to respond to the Petition with a "Responsive Motion" that contains his/her requests for relief from the Court. Since the grounds for a Legal Separation are similar to those for a divorce, you can expect the parties to negotiate the same type of issues as with a divorce proceeding: division of marital property, custody, child support, dependency exemptions, alimony, etc.
Legal Separation Costs and Fees
Typically, the filing fee for a legal separation is $330.00. However, to be granted a legal separation, you must appear in front of a judge for a hearing, as per Minnesota Statutes. This lower court appearance will incur court costs of $60.00. In addition to these costs, attorney’s fees, filing fees for discovery motions, and costs for drafting a financial affidavit (required by the court at the time of filing) are also incurred.
A legal separation does not have any specific duration, and thus may end up costing more than a dissolution if the parties are separated for a long period of time. In addition, the cost of assets being divided through a legal separation may be greater than the cost of a dissolution of marriage, if the parties are able to work together to divide their property.
Important Considerations
Legal separation is a legal tool that Minnesota couples can use preemptively to protect assets, enforce child support and custody arrangements, or clarify spousal support obligations while potentially exploring the possibility of saving the marriage. Important considerations for couples contemplating a legal separation include how it will affect children, property, and financial responsibilities.
When one spouse moves out or moves into an apartment, it can be disruptive to the children involved. When the couple chooses to legally separate, they often agree on a parenting plan that establishes custody and visitation. With several other arrangements, it is important to note that a legal separation does not affect child support, custody and visitation arrangements. The orders from the legal separation will address these issues and are just as legally binding as those issued in a divorce. So, even though the couple is still married, the legal separation addresses all the same arrangements a divorce decree would.
Marital property is typically subject to division in a Minnesota divorce. When couples legally separate , the same rules apply. No matter the reason for the legal separation, once the spouses enter into a legal separation agreement, the marital estate becomes crystallized. Unlike in a trial for divorce, where just cause is required to redistribute property awarded to one spouse, courts can redistribute property in the terms of a legal separation agreement. Reducing the economic interests to award equitable division can give financial security to the spouse who is awarded those property items, but both spouses have to be in agreement as to how the property is divided.
The economic factors leading to a legal separation may also result in spousal maintenance. In Minnesota, there are five forms of spousal maintenance. Like property division, spousal maintenance resulting from a legal separation is often more equitable. However, because the court can use its discretion to change the maintenance order in a divorce, separating spouses may be unwilling to enter an agreement that is less than what they may be ordered to pay later.
Key Differences Between Legal Separation and Divorce in Minnesota
When we think about legal separation, divorce is often viewed as a precursor to it. This is often inaccurate. Legal separation is not a form of divorce; rather, it is just a different way to end a marriage that has its own implications, costs, and benefits.
When you legally separate, your civil status changes. You will have a legal separation decree and your marital status will be listed as "married but separated" on public record. The major difference is that there is not a vinculum – or physical binding – that is broken in separation. In other words, you are not legally divorced, even though you are living in separate houses, making new choices for yourself, and no longer having a lifestyle dependent on your spouse.
There is one additional difference that can be significant. In a divorce case, if you or your spouse later want to get back together, you can file a motion with the court to ask for a new trial, but the court does not have to grant that filing. In a legal separation case, you can later file for divorce and the court will grant your request to officially end the marriage.
Unlike divorce, for which residency is required, you do not need to live in Minnesota for a specific length of time in order to file for legal separation.
Another distinction between the two is that you do not need a reason to seek separation from your spouse. In most circumstances, you will need a court-signed document to be legally separated. However, while the process of divorce can be a lengthy one, legal separation is often expedited through mediation and compromise between you and your spouse, and the courts can even come to a temporary agreement about child custody and support if children are involved.
Legal separation is not the same as a limited divorce. In a limited divorce, the court grants a legal separation but will not grant a divorce absent clear and compelling evidence of abuse. Limited divorce basically protects the abused spouse and the children. A limited divorce must begin with a fault divorce petition.
Changing Legal Separation to Divorce or Annulment
The legal separation decree contains language that stipulates the circumstances under which the legally separated couple may be able to revert back to living as married husband and wife. Usually, there are two options when it comes to reversing a legal separation: the couple may reconcile, or they may wish to end their marriage through divorce.
Reconciliation
Marriage is premised upon a variety of factors, not the least of which are love, mutual respect and communication. Sadly, differences may arise as recounting of shared experiences continue. So long as health and safety are not at risk, many couples may wish to try and work through their problems. If reconciliation is desired, the couple must inform their attorney or the court and the dissolution should be vacated. If the parties had been attending marriage therapy, they may wish to continue so that issues that may have been inadequately addressed during their marriage can be resolved in an expedient manner.
Filing for Divorce After Separation
There are several options that a couple can take when they have filed for a legal separation, but later want to dissolve their marriage. First, if the separation proceedings did not conclude, the couple may file a "motion" to convert the separation to a divorce. Essentially, this is what is known as a motion to substitute the request. This affects the in-court behavior of the couple, but not the actual terms of the agreement. The procedural requirements for replacing this request vary from state to state, so it is important to check with your local court system’s protocol.
If the separation has already been finalized, the couple will need to start from scratch by filing a petition for divorce. This is because the dissolution of a legal separation is not tied to a divorce, but rather invalidates the separation so that a new divorce action is possible.
Divorce and Separation Orders
The final separation order must be addressed in the divorce proceeding before the divorce can be finalized. Unless the separation proceedings included a custody determination, that order may also be addressed in the dissolution. Specifically, the terms of child custody, parental rights and responsibilities and any other related issues will be exhausted in the dissolution of marriage proceeding.
Again, the mere existence of a legal separation does not automatically entitle you to a divorce based on the irreconcilable breakdown of the marriage, nor allows you to proceed in such actions without complying with the requirements of the legal separation code.
Legal Separation Help
Finding legal assistance is often one of the best things you can do for yourself to make your legal separation go smoothly in Minnesota. While I’ve just spent time discussing what you can do for yourself, there is no shame in hiring a lawyer to help you through the legal process.
Other professionals that can be important include a therapist or counselor (to work on yourself as you go through the process), mortgage brokers (if you have questions about how to balance your mortgage obligations) and a tax professional (to discuss the tax impact of your new separation). In some cases , you may even wish to hire a financial advisor/business lawyer to help you with the division of any property or any business interests.
If you decide that you do not want to hire an attorney to assist you with legal separation, you may be able to get help from the court services division of the state of Minnesota. The court services office will have someone who has been trained in family law, custody and divorce. However, these court services staff can’t actually give you advice or advice you on your particular legal separation like an experienced Minnesota divorce or legal separation lawyer can. The court services personnel can point you in the right direction to divorce and legal separation forms online and how to fill them out, but that’s about the extent of their role.