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When Legal Matters Become Personal

Limbo between separation and divorce

by | Feb 17, 2022 | Divorce


This article discussed “discernment,” the process of counseling for people at the “crossroads” of separation, who don’t necessarily want to work on their marriage, but also aren’t ready for divorce.

But the article doesn’t mention the legal issues that arise during a trial separation. I get a lot of calls from people in this situation, and if they aren’t ready for divorce, I certainly don’t push them toward that. But sometimes knowing the law while separated, will get them better ready for the consequences of the situation into which they place themselves. If there are no kids, and neither party is going to accumulate assets or be asked to support the other party, (and nobody is in a hurry to get remarried or otherwise change their legal status) they may not need legal advice during the interim. These are the issues we discuss:

  • Kids/custody

It always starts with the kids. If your long term goal is to have custody or at least 50% custody, it would be inconsistent with that goal, to temporarily move out and only see the kids once a week due to space and time constraints. There is no legal term of art for “abandonment,” but judges do have a strong tendency to continue the status quo, when you put yourself into a situation where you’re not seeing the kids regularly. And if that’s due to parental alienation, that issue needs to be addressed immediately, whether through therapy or legal action.

  • Assets

One of the big questions, is whether people who start acquiring assets post separation, will need to share those assets with their spouse if they ultimately get divorced. The answer is yes, in most cases. In a divorce, the presumptive date of valuing assets is the date of the pre trial, which is a date that gets set after the divorce is settled. There are two big exceptions, which is that the parties can agree on a different date, or the court can find that it is fair to utilize a different date. If there has been a long term period of separation, I have seen judges find that it is fair to utilize the date of the last jointly filed tax return as the fair date to divide assets. But that is certainly not something that can be relied upon.

When people do have this concern, particularly if a house is sold and one party reinvests in a new house, and the other party lives off the proceeds, the parties could put together an agreement and get it signed by a court.

  • Legal separation vs. divorce

Presuming that they don’t want to start a divorce, they could start a legal separation, and either enter into a temporary stipulation, and perhaps put the action on hold. This would most likely be upheld if a divorce is subsequently filed within a reasonable time. An agreement to permanently preclude either party from touching the others assets upon an ultimate divorce, would not likely be enforceable due to concerns of overreaching. Add to actually do a permanent legal separation is something that is usually not necessary, and usually doesn’t accomplish these goals either.

  • Post nuptial agreement

A post nuptial agreement in Minnesota requires that it be consistent with a prenuptial agreement: No prenuptial agreement, no post nuptial agreement.

  • Cash flow

Oftentimes when a party moves out, they humbly stay with a relative, and continue supporting the household. The issue becomes, the supported spouse will soon become addicted to the cash flow, will assume they are entitled to it, and delaying the ultimate necessity of getting them weaned off is harder to do, the longer you wait, and could have legal consequences as well, as one of the factors of spousal maintenance is length of marriage. And as a reminder, judges have a tendency to leave people in the status quo that the family created.

Sometimes people in this situation benefit from having a full consultation with an attorney, or even hiring an attorney to have on retainer, to ask questions as things may come up. (A full consultation is slightly different than a free consultation, because I will give advice that can be relied and acted upon in a full consultation, it’s a bit more in depth, and of course I need to charge for my time). I am a married man myself, and divorce is not a decision to take lightly.

It’s always a good idea to seek legal advice at the time of separation.