MN Legal Separation and MN Divorce

Occasionally I am asked about the difference between a legal separation and a divorce.  As always, my comments on this blog pertain to Minnesota law only.  Though Minnesota family law is often similar to family law in other states, as often it is not.  There is no federal “family law,” and there very few federal appellate cases that pertain to family law issues.

In Minnesota, a divorce ends a marriage.  A divorce decree terminates the marriage.  If the parties have children, the divorce decree will say who gets custody, who gets parenting time and in what amount, who pays child support, and how much child support is paid.  The divorce decree will also say who pays alimony, if any, and who gets what property.  It will also assign responsibility for debts to one party or the other, or to both parties.

In Minnesota, a legal separation does not terminate a marriage.  A decree of legal separation essentially states that the parties are separated.  Then, it goes on to say, on a temporary basis, who has temporary custody of the children, who pays temporary child support, and how much temporary child support is paid.  It also says who pays temporary alimony, if any, and, on a temporary basis, who gets to temporarily use the property.  It also says who, on a temporary basis only, has to pay which debts.

The key word here is “temporary.”  A legal separation is not a final dissolution of a marriage.  It is temporary.

In Minnesota, a proceeding for legal separation cannot be “converted” into a divorce proceeding.  These are two distinctly different proceedings.  If you first file for legal separation, then decide to get divorced, the attorney needs to prepare new pleadings for the divorce.  A new court file is opened, with a different court file number.  You might have a different judge.  You will need to pay the first court filing fee of $400 for the legal separation, and you will need to pay a second court filing fee of $400 for the divorce proceeding.

Often, people who seek a legal separation do so because they realize they cannot live together, but for religious or philosophical reasons they do not want to get divorced.  A legal separation does take cooperation between the parties, because if one party decides that he or she wants to get divorced (instead of getting a legal separation) the other party has no legal basis for opposing the divorce.  It just takes one person to say that there has been an ‘irretrievable breakdown” in the marriage relationship, and the court will grant the divorce over the other party’s objection.

If you want to know more about the difference between legal separation and divorce in Minnesota, feel free to call me at (952) 270-7700.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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