There is plenty of confusion about the terms “legal separation” and “divorce”, simply because the terms are misused so often. These assumptions may lead people to make mistakes that can affect their family law case later.
You can “separate” from your spouse simply by moving out of the home. When this happens, you’re still married and you aren’t filing any paperwork with the courts. How you handle your bills, assets, and child-rearing responsibility is up to you—it’s still a marital matter, even though one spouse is not living in the home. If you want to end a separation you’d simply move back into the home.
It is not necessary for you to do this before you get a divorce. In fact, in Minnesota, there can be significant consequences for moving out of the marital home while seeking a divorce.
What kinds of consequences? The biggest consequence can be that it will tell the court that you are making certain assumptions about who should live in the marital home and be the primary parent. It may be difficult to go back on those assumptions later if you want to stay in the marital home or take sole custody of your children.
If you are desperate to get out of a contentious situation you will want to consult with your lawyer before moving out. Many couples carry out the entire divorce process while continuing to remain at home until the courts have made their final decision.
Of course, this type of separation is not a legal separation. A legal separation does involve the courts, and it looks almost like a divorce does. You pay filing fees, you go before the courts, and you hash out the major issues of custody, parenting time, spousal maintenance, child support, assets, and debts. The courts will likely determine the disposition of the marital home at that point.
However, you will still be married. You will not be free to marry anyone else, and the tax consequences of being a married couple will remain. Only a divorce can end a marriage completely, and you’d have to seek that divorce in a separate court action if you want to dissolve the marriage later.
Legal separations are most often used by couples who are embroiled in irreconcilable differences but whose religious, moral, or personal values prevent them from dissolving the marriage entirely. Sometimes it is used for financial reasons as well, including health insurance eligibility.
In most cases, if you intend to get a divorce you should simply start the divorce process. Make sure that you have a good, experienced lawyer at your side by contacting BGS today.