A divorce is a different legal proceedings than a legal separation. This is true in every state in the United States. A divorce has its own set of laws which govern how it proceeds through the legal system. The same goes for a legal separation.
Put simply, a legal separation is just what it sounds like: a separation of a married couple that is recognized by a court of law. The couple separates but does not dissolve their marriage. Couples can be separated indefinitely – they can live apart their entire lifetimes but still be married. Even people who never intend to see each other again but do not get a divorce are still considered married in the eyes of the law. A good divorce attorney will explain the differences between a legal separation and divorce proceeding to you.
What are the legal consequences of separating verses getting a divorce?
On a basic level, a divorce will mean that a marriage is totally dissolved. The judge will enter an “Order” or a “Decree of Dissolution of Marriage” when the divorce is finalized. The divorce can be litigated and a trial held where a judge considers evidence and then issues a final Order. Or, the divorcing couple can simply agree to how they are going to divide their assets, debts and other marital issues. If the couple agrees, then they enter into a legally binding contract typically called a “Marital Settlement Agreement.”
You can think of the marital settlement agreement as being no different in legal function as a prenuptial agreement. They are both contracts which dictate how money and debts are divided. The main difference between a marital settlement agreement and a prenuptial agreement is that, with a prenuptial agreement, most states do not allow you to make legally recognizable agreements regarding the division of custody and parenting time with minor children. This is because the legislature of most states has made a public policy decision that it is not in the best interest of children to allow parents to essentially “contract-away” their legal rights regarding the children.
In the case of a legal separation, a married couple who files a legal separation proceeding with a court will not typically receive a final Dissolution Order from a judge. Instead, a couple will typically file for legal separation and then enter into a legal separation agreement. Once the agreement is reached, it can be filed with the court. The judge will then issue an Order or “Decree of Legal Separation” stating that the parties are now separated in the eyes of the law but they are not divorced. The agreement and order will typically have an effect on how property is divided after the agreement is entered into. Thus, if a husband who is legally separated buys a car, the wife will typically not be responsible for the payment of the car or receive any benefit from the value of the car.
Is a divorce or a legal separation right for you?
This is decision that can only be made by you. As a Apple Valley MN divorce attorney, I have had clients tell me that they still want to be married because they think they may be able to work things out later. However, the client will also tell me that their marriage isn’t working right now and they need to be protected legally. Sometimes a husband or wife will be spending money wildly. This creates some obvious stress and concern. Perhaps the couple knows they aren’t getting along but still love each other. In either case, a legal separation can be a good way to keep a marriage intact while still protecting individual interests in assets and debts.
On the other hand, a divorce can be final and will allow a couple to make permanent decisions about assets, debts, and the custody of their children. As I stated, the divorce is final and couples must realize that. Many couples know they need a divorce and they simply ask how to get the proceedings started. However, it is important to keep in mind that a legal separation is an option.
Contact the Firm
Joseph M. Flanders can be contacted at the law firm or via telephone at 612-424-0398.
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