When you and your spouse separate, it merely means that you have decided to live apart for an undefined amount of time. A separation can last a few weeks or a few years. Whether your separation is formal or informal, you'll need to decide how you'll divide finances, pay rent and/or care for your children while you're apart. You can turn an informal separation into a legal separation by filing a petition for separation with the court. Even if your legal separation is recognized by the court, it won't hold the same effect as a divorce because you're still married.
A divorce is a final court order, which separates your spouse's property from your own, sets alimony amounts, and resolves child custody and support as appropriate. Minnesota law does not require spouses to live separately before divorcing.
Once your divorce is finalized, you are no longer married. A separation is generally temporary, but a divorce is permanent. Your divorce order will resolve every issue in your divorce and divide all property. Once you're divorced, you are free to remarry. Moreover, all earnings and/or assets acquired after your divorce is considered your own separate property. This is not always the case in a separation. In some cases, a couple's earnings during a separation period are marital property. Additionally, under certain circumstances, one spouse may be liable for the other spouse's spending during a separation period.
Minnesota recognizes a legal separation as a distinct status. A couple may file a petition for legal separation in the county where they live. The process is similar to filing for divorce and in some cases may take just as long to complete.
Once you request a legal separation, a judge will review your assets, children's needs, and family's overall circumstances and come up with property and child custody and support orders to last during your separation period. Legal separation orders aren't permanent. In many cases, your separation order may only be valid for one year. At that point, you can proceed forward with a divorce or work on fixing your marriage.
For some couples, the costs and time associated with obtaining a legal separation are worth the expense. In many cases, a legal separation can allow one spouse to retain insurance benefits, whereas a divorce automatically terminates those benefits. A legal separation can also give spouses time and space to sort out living arrangements and child custody. In some cases, spouses are more prepared to quickly settle their divorce following a legal separation.
For couples who don't want a divorce for religious reasons, a separation may be a better option even though it's a temporary solution. A judge may issue support, property, or custody orders as part of a legal separation, but unlike divorce orders, legal separation orders aren't permanent.
You and your spouse may be able to negotiate a separation agreement with a mediator's help. A mediator is not a substitute for an attorney and can't offer you legal advice. Instead, a mediator acts as a neutral third-party to facilitate settlement. If you are able to settle, your separation agreement should address issues pertaining to custody, support, insurance premiums, responsibility for debts and who should pay the mortgage on the marital home. Your agreement may also put a timeline on your separation, such as six months or a year.
Believe it or not, your parenting responsibilities during a separation period can impact a later custody award. A judge will evaluate a child's best interests when determining custody. For example, if you had no contact with your child during a six-month separation period, it may be difficult for you to obtain custody in your divorce. The following factors may be relevant to your custody case:
In other words, your relationship with your child during your separation will impact a judge's custody decision. For example, the parent who took care of the child's daily needs during a separation period may have a better chance at obtaining physical custody in a divorce. Conversely, if a child struggled in one parent's care while the parents were separated, a judge may reevaluate custody and order a different arrangement.
If you have questions, you should contact a local divorce attorney for advice.