Although the two topics might seem similar, legal separation and divorce are two different alternatives for couples that no longer want to be married. Divorce is the formal dissolution of a marriage. Legal separation, on the other hand, simply allows a couple to live separate and apart for a period of time to decide whether or not they want to remain married or seek divorce.
Divorce vs. Legal Separation
Because Indiana is a “no-fault” divorce state, neither spouse has to prove any wrongdoing to obtain a divorce. For the court to grant a divorce, it must find that there has been an “irretrievable breakdown of the marriage”. Legal separation is not a required prerequisite to obtaining a divorce, however the period of legal separation for couples that are unable to repair their marriages may be used as a factor in the court’s determination of whether an irretrievable breakdown of the marriage has occurred. Legal separation does not end a marriage; couples that are legally separated are still married until they obtain a divorce. By statute in Indiana, a legal separation cannot last more than a year. When the year separation expires the couple must decide whether or not to file for divorce.
Like a divorce, a legal separation is by court order. For a legal separation to be granted, the court must find that the marriage is so intolerable that the couple cannot live together. During a legal separation, the court can enter temporary orders for support. A spouse can ask the court for temporary maintenance, child custody, possession of property, and/or child support. Likewise, a spouse can ask for temporary visitation rights, counseling, or temporary restraining orders or protective orders. Either spouse may request the judge to order counseling during the legal separation to try and improve the marriage. However, if either spouse is against counseling or if any violence has occurred within the marriage a judge cannot require counseling.
Collaterals of Legal Separation
Legal separation can offer couples time to evaluate their marriage while other aspects of the marriage remain intact, such as health insurance policies. During a legal separation, each spouse is still liable for the debts owed by the other spouse because a divorce has not been finalized. A petition for legal separation cannot be filed if a petition for divorce has already been filed. Conversely, spouses legally separated can file a petition for divorce prior to the one-year requirement expiring.
Speak with an Experienced Attorney
If you are having difficulty in your marriage and would like to discuss your legal options, an attorney can provide assistance. Attorney Christopher L. Arrington assists clients in family law matters. The thought of divorce can be overwhelming, especially if property and custody issues are involved. It is important to explore your legal options with an attorney prior to pursuing anything in court, whether it is legal separation or divorce. Attorney Arrington is there to answer your questions and take on the burden of the legal process. Contact our office today.