Divorce and legal separation are two legal procedures available to married couples in Indiana. Although both can have an impact on your marriage, there are significant differences between the two processes.
Divorce is a legal method used by couples who want to dissolve (end) their marriage. The court will act on your case after either spouse files a formal request for court intervention, which is commonly titled petition for dissolution of marriage. The couple usually works together to negotiate the terms of the divorce, and if either spouse objects to a condition, you can ask the court to settle the dispute. Divorced spouses can remarry at any time after the judge signs the final court order.
Legal separation is a process that allows the couple to request court orders that address divorce-related issues, like child custody and spousal support. But, after the case is over, the couple is still legally married, meaning neither spouse can remarry without first asking the court to convert the case into a divorce.
Some couples wonder what the benefits are of a legal separation. Others question whether it would be easier to move into separate homes and handle the other issues without court intervention. It's important to understand that a legal separation is different than a physical separation. If you and your spouse decide to live apart without asking the court for help, you won't have the benefit of enforceable court orders to fall back on if your communication breaks down later.
There's no right or wrong reason to choose legal separation instead of divorce. Married couples often consider a legal separation to test the waters for a divorce, or to take some time apart to decide whether reconciliation is a possibility. Others use the process to avoid the social stigma of divorce.
Some couples also pursue a legal separation instead of a divorce because:
The process starts when one party files a petition with the court. Your request must contain specific information, like each spouse's full name, the names of any children (age 21 and under) from your marriage, the date of your wedding and separation, and your address. You must also demonstrate to the court that you meet the state's residency requirement, meaning at least one spouse has lived in Indiana for a minimum of 6-months and the county where you file your petition for 3-months before submitting the documents.
Like a divorce proceeding, you must also provide the court with a legal reason, or grounds, for your request. In Indiana, you'll need to demonstrate to the judge that there are conditions or circumstances within your marriage that make it currently intolerable to live with your spouse. Most states only require spouses to provide a "no-fault" reason for ending the relationship, but Indiana law also requires you to make a statement to the court that it's important to both spouses that the marriage continue and state under oath that neither spouse already initiated divorce proceedings.
You and your spouse can negotiate the terms of your separation or you can ask the court to decide. Common issues that couples need to work through include child custody, child support, property and debt division, and spousal support. You can also use the court process to request marital or family counseling and personal protection orders.
In some states, couples can stay legally separated indefinitely, but in Indiana, your legal separation can't exceed 12-months, which means that you have one year to decide whether you want to reconcile or file for divorce.
For most married couples, divorce or legal separation are both last resort options, especially in Indiana where the law limits legal separations to one year. If you're not sure whether you want to permanently terminate your marriage (divorce) or ask the court to define the terms of your breakup (legal separation), you can agree to participate in a trial separation.
Courts don't authorize or enforce trial separations, but most couples find that taking time away from each other allows them the opportunity to reassess the relationship and the possibility for reconciliation (or not.) Parties can put an expiration date on the trial and verbally agree to the terms of custody and support, without court intervention. If you'd like a more formal arrangement, you can document your agreement in a written contract.
At the end of the trial, you'll need to decide to reconcile, move forward with a legal separation, or file for divorce.
Before the court grants your request for a legal separation, you must put the terms of your arrangement in writing. A separation agreement is a legally binding contract between spouses that resolves child custody, child support, property division, and spousal support issues. Like divorce, if you can't agree on all the terms, the court will decide for you.
Separations agreements are valid until the couple reconciles, or files for divorce. In cases where parties ask for a divorce, the judge may merge the separation agreement into the final divorce judgment.
The similarities between divorce and legal separation don't stop with how the state views your marriage. In fact, when parents ask the court for a legal separation, the court must consider how the arrangement will affect the children.
If the parents can't agree on custody and child support, the judges will evaluate what's best for the children by considering a set of factors to assess each parent's ability to care for and promote the children's well-being. Typical examples include whether the parent can provide necessities for the children and whether both parents agree to foster the child's relationship with the other parent.