This Article is
intended to provide only a summary overview of
the issues related to legal separation.
However, since laws are forever changing, the
information on this page and on this web site
may occasionally become outdated. You should
always consult with a lawyer on your legal
issues.WHAT IS LEGAL SEPARATION?
Many believe that a legal separation occurs
when married parties separate and begin living
apart. However, the truth is that a "legal
separation" is not recognized until the parties
have filed in court and a court order legally
separating the parties occurs.
The process of legal separation is identical
to divorce. The same types of documents
may be filed. The same type of discovery may
occur, and the same issues may be resolved
including custody, parenting schedules, child
support, spousal support, and property division.
The only difference between a divorce and a
legal separation is that at the end of the
process, the marital relationship is not
severed.
WHY LEGAL SEPARATION?
You may ask why anyone would opt for a legal
separation if all of the issues are identical to
divorce. In some instances parties file
for legal separation based on religious
consideration. In others it is to continue to
take advantage of tax laws or with the hope that
the parties may reconcile in the future.
PRECEDENCE
When you are
consider a legal separation, you should realize
that your agreements might set a precedence for
what is awarded in the divorce. If you own a
home, it is best not to give up your rights
before divorce papers are drawn up. Try to spell
out who will be awarded the home in your
separation agreement.
RESIDENCY: The residency
requirements for divorce and legal separation
are the same. One spouse must reside in the
state of Minnesota for at least 180 days prior
to filing a divorce. You may file the divorce in
the county where either party resides.
[Minnesota Statutes §518.07 and Minnesota
Statutes §518.09].
LEGAL SEPARATION GROUNDS: No grounds
for a legal separation are needed. If one or
both parties petition for a decree of legal
separation and neither party contests the
granting of the decree nor petitions for a
decree of dissolution, the court shall grant a
decree of legal separation. Any party may turn a
legal separation into a divorce by filing an
Answer requesting the modification. [Minnesota
Statutes §518.06].
SEPARATION-WHAT TO SERVE: A legal
separation is commenced when one party serves a
copy of a Summons and a Petition for Legal
Separation. "Serving" these documents means that
they must be provided to the other side in a
fashion required by Court rules. In Minnesota
service may be completed "personally" by having
any person, except the filing party, hand the
documents to the non-filing spouse or by handing
the documents to another person living with the
non-filing spouse who is of suitable age and
maturity. Once service is complete, an affidavit
must be filed with the Court. The affidavit is
signed by the person completing the service
stating that he or she provided the papers to
the other party.
Personal service may be avoided if your
spouse is willing to admit service. Service can
be admitted by having the non-filing spouse sign
before a notary a document that admits they
received a copy of the Summons and Petition.
If you do not know where your spouse resides,
you may ask the Court to allow "substitute
service". To qualify, you must demonstrate to
the Court that you have tried to locate the
other party without success and that you seek to
serve them by publication. If the Court agrees
to allow substitute service, a short notice may
be published in a legal newspaper in the county
where the other party was last known to reside.
Service is complete after the notice has run for
three consecutive weeks.
WHAT TO FILE: The original Summons,
Petition and an affidavit of service must be
filed with the Court with an appropriate filing
fee top commence the matter in the Court system.
Generally speaking, filing fees in Minnesota
range from $225 to $250.
PROPERTY DISTRIBUTION: Minnesota
requires an equitable division of the marital
property of the parties without regard to
marital misconduct. Equitable does not mean
mathematically equal and the court must base its
division on all relevant factors including the
length of the marriage, any prior marriage of a
party, the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities, needs,
opportunity for future acquisition of capital
assets, and income of each party. The court must
also consider the contribution of each in the
acquisition, preservation, depreciation or
appreciation in the amount or value of the
marital property, as well as the contribution of
a spouse as a homemaker. It shall be
conclusively presumed that each spouse made a
substantial contribution to the acquisition of
income and property while they were living
together as husband and wife. The valuation date
for the marital assets is the day of the
initially scheduled prehearing settlement
conference, unless a different date is agreed
upon by the parties, or unless the court finds
that another date of valuation is fair and
equitable. [Minnesota Statutes § 518.58]
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NON-MARITAL ASSETS. "Nonmarital
property" means property real or personal,
acquired by either spouse before, during, or
after the existence of their marriage, which (a)
is acquired as a gift, bequest, devise or
inheritance made by a third party to one but not
to the other spouse; (b) is acquired before the
marriage; (c) is acquired in exchange for or is
the increase in value of property which is
described in clauses (a), (b), (d), and (e); (d)
is acquired by a spouse after the valuation
date; or (e) is excluded by a valid
antenuptial contract. [Minnesota Statutes
§518.54].
The Court may divided even non-marital assets
if it finds that either spouse's resources or
property are so inadequate as to work an unfair
hardship. [Minnesota Statutes § 518.58]
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VALUING PENSIONS. Pensions, retirement
plans, 401K and other deferred compensation is
marital so long as it was acquired during the
marriage. The Court has the power in a divorce
to appoint a qualified person experienced in the
valuation of pension benefits and rights to
function as an expert witness in valuing pension
benefits or rights. [Minnesota Statutes §
518.582]
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ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:
Either spouse may be ordered to pay alimony in a
legal separation, without regard to marital
fault, if it finds that the spouse seeking
maintenance: (a) lacks sufficient property,
including marital property apportioned to the
spouse, to provide for reasonable needs of the
spouse considering the standard of living
established during the marriage, especially, but
not limited to, a period of training or
education, or (b) is unable to provide adequate
self-support, after considering the standard of
living established during the marriage and all
relevant circumstances, through appropriate
employment, or is the custodian of a child whose
condition or circumstances make it appropriate
that the custodian not be required to seek
employment outside the home.
If the Court determines spousal maintenance
(alimony) is appropriate, it must determine the
length of time and amount by considering all
relevant factors which may include: (a) the
financial resources of the party seeking
maintenance; (b) the time necessary to acquire
sufficient education or training to enable the
party seeking maintenance to find appropriate
employment; (c) the standard of living
established during the marriage; (d) the
duration of the marriage and, in the case of a
homemaker, the length of absence from
employment; (e) the loss of earnings, seniority,
retirement benefits, and other employment
opportunities forgone by the spouse seeking
spousal maintenance; (f) the age, and the
physical and emotional condition of the spouse
seeking maintenance; (g) the ability of the
spouse from whom maintenance is sought to meet
needs while meeting those of the spouse seeking
maintenance; and (h) the contribution of each
party in the acquisition, preservation,
depreciation, or appreciation in the amount or
value of the marital property, as well as the
contribution of a spouse as a homemaker or in
furtherance of the other party's employment or
business. [Minnesota Statutes §518.552]
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MEDIATION. In a legal separation, if
the parties have dispute regarding custody of a
child or parenting time, the matter may be set
for mediation of the contested issue prior to,
concurrent with, or subsequent to the setting of
the matter for hearing. This must take place
unless the court determines that there is
probable cause that one of the parties, or a
child of a party, has been physically or
sexually abused by the other party. [Minnesota
Statutes §518.619]
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CHILD CUSTODY: In a legal separation,
courts may also decide custody issues. Child
custody is determined based on the "The best
interests of the child" after an evaluation of
the following: (1) the wishes of the child's
parent or parents as to custody; (2) the
reasonable preference of the child, if the court
deems the child to be of sufficient age to
express preference; (3) the child's primary
caretaker; (4) the intimacy of the relationship
between each parent and the child; (5) the
interaction and interrelationship of the child
with a parent or parents, siblings, and any
other person who may significantly affect the
child's best interests; (6) the child's
adjustment to home, school, and community; (7)
the length of time the child has lived in a
stable, satisfactory environment and the
desirability of maintaining continuity; (8) the
permanence, as a family unit, of the existing or
proposed custodial home; (9) the mental and
physical health of all individuals involved;
except that a disability of a proposed custodian
or the child shall not be determinative of the
custody of the child, unless the proposed
custodial arrangement is not in the best
interest of the child; (10) the capacity and
disposition of the parties to give the child
love, affection, and guidance, and to continue
educating and raising the child in the child's
culture and religion or creed, if any; (11) the
child's cultural background; (12) the effect on
the child of the actions of an abuser, if
related to domestic abuse that has occurred
between the parents or between a parent and
another individual, whether or not the
individual alleged to have committed domestic
abuse is or ever was a family or household
member of the parent; and (13) except in cases
in which a finding of domestic abuse, the
disposition of each parent to encourage and
permit frequent and continuing contact by the
other parent with the child. [Minnesota Statutes
§ 518.17]
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CHILD SUPPORT: In a legal separation,
the court may award child support for the of a
child based on the child support guidelines set
out in statutes. The guidelines are based on the
net monthly income of the obligor. [Minnesota
Statutes §518.551]
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