Legal Separation
- by Eric C. Nelson, Attorney

This article deals with legal separation — not with informal separations. Unlike a divorce, a legal separation does not dissolve the marriage. Technically, a legal separation is defined as “a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship.” [1] It is a way of resolving many of the issues involved in a divorce, such as apportionment of property, possession of the house and cars, responsibility for debts, child custody and parenting time, child support, and spousal maintenance, without terminating your marriage. Unlike in divorce, however, the decree of legal separation does not resolve these issues with finality.

If what you’re really after is a divorce, it doesn’t make any sense to do a legal separation. [2] The point of a legal separation is to allow you to remain married even if you need to be separated because you’re working toward reconciliation, or because for religious or other reasons you don’t want to divorce.

Because of the ease with which divorces can be obtained since the advent of no-fault, legal separations have become very rare. Nevertheless, the option remains available; and I would encourage its use as an alternative to divorce, particularly if there is a possibility of reconciliation.

A decree of legal separation — and/or a post-nuptial agreement — is also a good way to protect your interests during what would otherwise be a period of informal separation. Particularly in cases involving the custody of children, moving out of the house for any length of time can greatly prejudice you in the event of divorce. A decree of legal separation and/or post-nuptial agreement, if done right, can offset that prejudice and afford you the time and space to work on reconciliation without fear that the separation will be used against you later should you end up in divorce.

  1. Minnesota Statute section 518.06.
  2. The only exception to this is where neither party has lived in Minnesota for the requisite six month period necessary to establish Minnesota court jurisdiction over the divorce, in which case a legal separation action could be brought immediately, and later converted to one for divorce once the residency requirement is met. (There is no length-of-residency requirement for legal separations, although at least one party must be a resident of Minnesota at the time the legal separation action is commenced).