Legal separation determines the rights and obligations of the parties after issuance of a decree of legal separation. You and your spouse will still be legally married, but your marital status will be termed "legally separated." Some people are morally or religiously opposed to divorce or may hold some hope of reconciling with their spouse. The proceeding provides an option that maintains the legal marital relationship but severs legal responsibility for future debts incurred by their spouse, and determines other rights, such as custody, child support, spousal maintenance. No final division of marital property is made but property acquired after the decree of legal separation is entered is considered "non-marital" property. A divorce proceeding ends the parties' marital status and finally determines rights of ownership to all assets owned by the parties. If either party petitions for divorce, a legal separation proceeding is converted to a dissolution proceeding.
Do I need to have "grounds" in order to obtain a divorce?
There is no longer any requirement that one spouse show "grounds" to obtain either a legal separation or divorce, such as mental or physical cruelty, adultery or abandonment. Moreover, the Court will not permit any testimony on these issues to support the dissolution of the marriage. A divorce is granted if the Court finds that there has been an "irretrievable breakdown" of the marriage relationship. This is usually based upon the testimony of one spouse that there is no hope of reconciliation. Therefore, if one spouse is determined to obtain a divorce, there is very little the other spouse can do to prevent it.
Is "fault" considered by the Court?
Under Minnesota law, the "fault" of either party is no longer considered in determining monetary issues such as in dividing property or determining the proper amount of spousal maintenance or child support. Fault may only be considered by the Court if a parent's misconduct reflects upon issues of child custody and visitation. Therefore, a spouse's conduct during the marriage which has contributed to or brought about the failure of the marriage is not considered unless the conduct has some direct relationship to child custody and/or visitation issues (for example, abuse or neglect of children or conduct which threatens the safety of the children).
How does a divorce or legal separation proceeding start?
A divorce or legal separation proceeding formally begins when the spouse seeking the divorce (the "Petitioner") prepares a "Summons" and "Petition for Dissolution of Marriage" or "Petition for Legal Separation" delivers these papers to their spouse (the "Respondent"). The Summons warns the respondent to formally take part in the proceeding or the issues will be decided without their participation. Minnesota law requires the spouse receiving a Summons in a dissolution proceeding to respond within thirty (30) days after receiving the papers. The respondent has the right to prepare and reply by a document entitled an "Answer and Counter Petition." A written Answer must be served on the spouse or their attorney within 30 days of your receipt of the Summons. Minnesota law also allows parties to join in a Joint Petition for a divorce or legal separation if they agree on issues. This is generally available where they agree on all issues.
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