The process of legal separation in Minnesota is nearly identical to a marital dissolution proceeding. Such a case begins upon service of a Summons and Petition for Legal Separation and, once filed with the District Court, is subject to the same rules for discovery, and involves similar issues to be resolved such as custody, parenting schedules, child and spousal support, and property division. The main difference between a divorce and a legal separation is that at the end of the process, the marital relationship is not severed. In addition, the judgment and decree of legal separation does not permanently divide marital property, and technically speaking includes orders pertaining to custody, parenting time and support issues which are temporary rather than permanent. At any time during the process, or even after the legal separation proceeding has been concluded, one party could commence a divorce proceeding and the process would begin all over again. As a practical matter, agreements and the final order in a legal separation set a precedence that is often followed in a divorce action.
There are a number of reasons why some people choose a legal separation rather than a dissolution proceeding. For example, some decisions are based upon religious beliefs regarding the issue of divorce. Some parties hope that they may reconcile in the future. Occasionally, there are tax advantages to remaining married even though one or both parties prefer to be divorced. Interestingly, the jurisdictional requirement in a dissolution proceeding does not apply in legal separation proceeding. For example, if a person wants to be divorced in Minnesota, residence must be established in this state for at least 180 days prior to commencing the proceeding. The same is not true for someone who prefers to commence a legal separation. Consider the case of an individual who is involved in an abusive relationship and living in the state outside of Minnesota. That person could choose to leave the relationship, possibly return to Minnesota to live with relatives, and immediately commence a legal separation proceeding in Minnesota and later convert the proceeding to dissolution after the jurisdictional requirement is met. This process and example is particularly useful if the individual needs temporary financial support.
As indicated one of the major disadvantages of a legal separation proceeding is that property divisions are not permanent. What if the legal separation occurred in 2005, at the height of the housing boom? Decisions made in a legal separation proceeding most likely would result in equity remaining with the homestead and the individual occupying the home. After the housing bust, the individual retaining a lien in the homestead would have lost all of his or her value in that home. In a straight dissolution process, the decision most likely would have been to either sell the home or refinance the other individual’s share of the home so that they would not have carried the lien forward.
Medical expenses can also be collected against a spouse of the recipient of the medical care, even in the case of legal separation. Parties may choose to continue to name each other as beneficiaries on their life insurance policies, but if those decisions are not documented in the decree of legal separation, or subsequently documented in writing, those designations could be successfully challenged by the decedent’s estate. If one’s spouse dies after the legal separation proceeding is concluded, the surviving spouse could still be considered an heir of the decedent’s estate, regardless of the parties’ intentions. Finally, what if the parties reconcile sometime after the conclusion of the legal separation proceeding? Case law tends to suggest that the property owned by each party is restored to its original “marital” status, which could then be equally divided if the parties choose subsequently to divorce. If one party’s balance sheet increases, or the other party’s balance decreases, the party with the diminished balance sheet could get a second bite of the same apple in a subsequent dissolution proceeding.
There are specific cases were legal separations are the preferable course of action, and in those cases effective legal counsel is critical not only to helping a party through the legal separation process, but also for anticipating and planning for issues that may arise in the future in order to avoid unattended consequences.