Legal Question in Family Law in Minnesota

Re: legal seperation

A legal separation, like a divorce, does not actually require that the parties live in different residences. Like a divorce, a legal separation has nothing to do with place of residence, rather, it reflects a change in marital status.

I am often asked questions about the effect of a "legal separation," and in most cases, the person asking the question assumes he or she is "legally separated" from his or her spouse if they live in different residences, or are separated and in the midst of a divorce proceeding. In fact, legal separation, properly speaking, has nothing at all to do with where people live.

Under Minnesota law, a married person can commence a proceeding for a divorce by serving and filing a divorce petition. Thereafter, whether as the result of a settlement or a trial, the marriage is dissolved by the entry of divorce decree -- a court order.

A legal separation is virtually identical to a divorce proceeding. It is commenced by serving and filing a petition for legal separation. Thereafter, whether by agreement between the parties, or by order of the court after a trial, the court enters a "decree of legal separation." A decree of legal separation looks, in almost all respects, like a divorce decree. The only difference is that rather than dissolving the marriage, the parties are declared to be separated, and in some respects, the court may handle property differently. This is not what most people think of as "legal separation," but under Minnesota law, that's what it means. Other than this, there is no such thing as a "legal separation." The popular use of the term is merely a colloquialism.

Legal separations are relatively uncommon in Minnesota. Sometimes people will petition for a legal separation, rather than a divorce, because to petition for separation you do not have to meet the six month residency requirement. In other cases, people petition for legal separation because of religious convictions that preclude marriage -- and yet they still need the protection of a court order to determine custody, child support, spousal maintenance, etc.

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