How Does Divorce Work if We Are Already Separated?

Many couples test out a trial separation before divorcing. Under Minnesota law, however, a legal separation is an alternative to divorce, not a step in the divorce process. Because legal separation does not end a marriage, the divorce process is the same for couples who are informally separated and couples who are legally separated.

When a couple lives apart and refers to themselves as separated, they can choose to get legally separated or make a decision to get divorced. They can file the divorce jointly if they agree on its terms, or one spouse can serve the other with a divorce petition if there is any disagreement. During the divorce process, the couple and the courts will determine how to divide the marital property, resolve issues of child custody, and determine whether to award child support and spousal maintenance.

During the legal separation process, a court will decide all of the issues that would normally be handled in a divorce. The main difference between a legal separation and a divorce is that a legally separated couple is technically still married. They cannot marry other people without divorcing. People choose this option for religious reasons, moral reasons or financial reasons; it is sometimes possible to stay on a spouse’s employer-provided health insurance plan after a legal separation. Another difference between separation and divorce is that a court will typically award only temporary spousal support during a separation, but may award permanent spousal support during a divorce.

Minnesota does not have a procedure for converting a separation into a divorce. If you and your spouse have chosen to get a legal separation and then later choose to divorce your spouse, you will need to go through the regular divorce process — because, in the eyes of the law, though legally separated, you are still married.

If you are considering a legal separation or you are ready to formally end a marriage after separation, call an experienced Minnesota divorce lawyer at Appelhof, Pfeifer & Hart, P.A. today.

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