Many divorces are preceded by the couple separating, usually with one moving to another residence, but sometimes just to a different room in the home. This period of separation is used by some couples to reassess the feasibility of saving the marriage and by others as a precursor to divorce. Depending upon the circumstances, spouses may start to untangle shared finances and discuss the parenting arrangements going forward as they contemplate life as single people.

However, if the spouses need some breathing room but are not ready to formally start the divorce process, legal separation may be an option. Legal separation is not the most common choice couples make when contemplating ending a marriage, but it could be the right option if the transition into divorce is beyond what the couple wants. A recent example that bucks the typical celebrity trend of going to straight to divorce is the recently-announced legal separation of Chris Pratt and Anna Faris. Whether they will reconcile is unknown, but regardless of the specifics, legal separation is a significant step. However, it does have key differences from divorce that should be understood before deciding which procedure is the best for a particular marriage. A discussion of the procedure for obtaining a legal separation, and its limitations compared to divorce, will follow below.

Getting a Legal Separation

While legal separation does not go as far as divorce, it does still involve a formal legal process that starts with filing a petition, and has the same residency requirements that govern divorce cases filed in Indiana. Specifically, at least one spouse must be a resident of the state for six months and a resident of the same county for three months before the petition is filed. Thus, it is not necessarily a quick and easy stopgap measure. A court will grant a legal separation if the parties can show that the current conditions of the marriage make it intolerable to live together, and the marriage should not continue. These petitions are only permissible if a divorce case is not already pending. Importantly, by petitioning for legal separation, a party has the right to ask for temporary court orders for child support, child custody, maintenance (spousal support) and possession of property.

These provisions provide important protections for spouses who have fewer financial resources and need assistance with paying for childcare and basic expenses. They allow a parent to obtain a child custody order, which reduces the likelihood of the other parent blocking access and lets each party know exactly how much parenting time they are entitled to exercise. Note, however, that these orders are temporary, as is the legal separation. Legal separations are only valid for up to one year, and orders for temporary maintenance cannot be extended past the length of legal separation, though other temporary orders can.

Comparison to Divorce

The largest distinction between legal separation and divorce is that only divorce can legally end a marriage. Thus, the issues related to divorce – child custody, support, etc. – cannot be finalized until a divorce is granted. This lack of finality is most relevant to the division of property. Property settlements are essentially final and very rarely appealable. As a result, courts will not generally address property in a legal separation case, except perhaps to give one spouse exclusive use of the marital home. Consequently, one spouse could have less access to financial resources during legal separation, depending upon how their accounts are set up. This situation is one example of when legal separation may not be ideal, and divorce could offer more benefits. An experienced divorce attorney can advise on which alternative makes the most sense in a given situation.

Get Legal Advice

Wanting to put off divorce until you are certain that is the result you want makes sense, and a legal separation could offer the legal rights and protections you need until a final decision is made. Christopher L. Arrington is a highly experienced Danville divorce attorney, and can evaluate the circumstances of your case and advise on the legal approach that would be most beneficial for you and your family. Contact the office today to schedule an appointment.