Usually, the march towards divorce happens in small steps that go unnoticed for a significant period of time. Then, after enough minor irritants and recurring disagreements accumulate into larger disputes, couples start to realize they are unhappy and the marriage is in trouble. Before rushing to file for divorce and activating all the consequences of such a decision, some couples try separating for some period of time to see if the problems in the marriage can be remedied. Indiana has a legal mechanism called legal separation that allows couples to remain married but also permits these individuals to receive some of the benefits of divorcing spouses. An overview of the differences between divorce and legal separation, as well as when a court will grant a couple this status, will follow below.

Divorce vs. Legal Separation

The biggest difference between divorce and legal separation is that divorce ends a marriage, while legal separation does not. Instead, legal separation puts a marriage on a temporary hold, while allowing a court to issue orders related to things like property, support, and child custody. This option may be good for a couple that is not ready to divorce, but is ready to take a break from living together. It is important note that it is not necessary to obtain a legal separation in order to move out of the marital home.

So why file for a legal separation? The main reason, as noted above, is to initiate court oversight of a couple’s legal relationship and obligations in order to limit shared liability for newly accumulated debt, clarify ownership and use rights in marital property, and establish support and child custody arrangements. One final difference between these two legal procedures is that divorce permanently ends a marriage and all orders issued in connection with the divorce become binding and enforceable going forward. Legal separations, on the other hand, are temporary and will last for no more than one year. This means any orders granted in connection with the legal separation will also expire when is an end point is reached.   

When is a Legal Separation Granted?

A court must find three factors before it will grant a legal separation. First, the existing conditions between the couple make living together intolerable. Second, the marriage should continue. And third, neither spouse has initiated divorce proceedings. Thus, if a spouse has already filed for divorce, the other party cannot petition for legal separation. If either party files for divorce after legal separation is granted, the order for separation, and any others connected with it, automatically terminate. A court will only issue orders for support, custody, property matters, and the like if requested by a party. In other words, these orders are not automatic. Connected with efforts to keep the marriage together, one or both parties can request the court to order counseling to help resolve the issues pulling the couple apart. However, a court cannot order a family to receive counseling together if either spouse is against it, or there is a history of domestic violence.

Talk to a Lawyer

If you are having issues in your marriage and want to consider a legal separation before jumping to divorce, talk to a family law attorney about what legal separation means for your family, so you can decide if it is a good option for you. Christopher L. Arrington represents clients in the Indianapolis area in family law matters, and he can assist you with your needs. Contact him to schedule an appointment.