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Summary of Minnesota Legal Separation
Minnesota Legal Separation, Legal Separation Lawyers


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 However, since laws are forever changing, the information on this page and on this web site may occasionally become outdated.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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