Legal Separation vs Divorce in Indiana

When a marriage is on the rocks, many couples believe that their only option is to get a divorce. However, that’s not necessarily the case. The two parties may actually choose to either pursue legal separation or divorce in Indiana, both of which are governed by the same laws. There are, however, some distinct differences between these two avenues that are important to consider when evaluating the options of a marital split.

If you’re considering separating from your spouse, the Indiana family law attorneys at Keffer Hirschauer LLP are available to assist you. They can guide you through the in’s and out’s of legal separation and divorce in Indiana, explain other possible avenues, and ultimately, help you come to a decision about the future that is best for you and your family’s needs. To speak with an Indiana legal separation attorney today, call 317-857-0160 or complete our online contact form to schedule a free consultation.

The Difference Between Legal Separation and Divorce in Indiana

The laws regarding both legal separation and divorce in Indiana can be found under Indiana Code 31-15, which governs the dissolution of marriage and legal separation. More specifically, the laws regarding divorce can be found in Indiana Code 31-15-2, while the laws on legal separation can be found in Indiana Code 31-15-3.

Generally, the main difference between these two avenues is that when you’re getting a divorce in Indiana, you’re choosing to legally put an end to the marriage. Filing for a legal separation, however, does not legally end the marriage. Instead, it allows the couple to formally separate from each other, both physically and financially. However, this is only for a limited period of time. Per Indiana Code 31-15-3-9, courts may only grant a decree for a separation of two parties to a marriage for a period that does not exceed one year.

The Benefits of Legal Separation

The most obvious benefit of a legal separation is that it allows the couple to formally separate and address any issues causing discontent without formally dissolving their marriage. For some, it may give one spouse the space and time needed to pursue recovery from substance abuse, addiction, or other personal issues that could otherwise be harmful to the family as a whole. For others, it may provide a trial-like setting for a possible divorce or a cooling-off period in which the couple may pursue counseling in a less-contentious manner.

Some couples elect to pursue legal separation over divorce in Indiana for financial reasons. For example, when a couple does not wish to get divorced but would like to separate their assets, property, debts, and liabilities, they may choose to be legally separated. In other cases, legal separation may be pursued in order to preserve both parties’ access to a handful of financial benefits, like health insurance, military benefits, or certain tax advantages.

Finally, one prominent similarity between legal separation and divorce in Indiana is that both allow you to file actions for spousal maintenance, child support, and child custody. In fact, this is one reason many individuals choose to legally separate, rather than informally separate. Legal separation affords them a proper legal avenue for determining these matters via an official forum with enforcement authority over any child-related order.

Reasons to Choose Divorce over Separation

If you’re completely certain that you’d like to end your marriage, it may best to skip legal separation and simply divorce in Indiana. The reason being is legal separation requires legal action, which can cost quite a bit of time and money. So, if you’re already certain you’d like a divorce but choose to legally separate first, you’ll have to go through that whole process twice, which can be rather costly. Beyond that, the only other reason to choose divorce over legal separation is to make a complete break from your spouse. If you’ve been issued a decree of legal separation, you cannot remarry, and you are still considered as your spouse’s next of kin. This is not the case with divorce. 

Filing for Legal Separation

Prior to initiating a legal separation in Indiana, it’s important to understand that there are two grounds for legal separation that must be met in order for a court to grant a decree. As stated in Indiana Code 31-15-3-3, the grounds are: (1) the condition in or circumstances of the marriage make it currently intolerable for both parties to live together; and (2) the marriage should be maintained.

Furthermore, there are some residency requirements for legal separations in Indiana. Per Indiana Code 31-15-3-6, at the time of filing the petition one of the parties must have been a resident of Indiana; or stationed at a United States military installation within Indiana; for six months immediately preceding the filing of each petition. In addition, one party must have been a resident of the county or stationed at a United States military installation within the county; where the petition is filed for three months immediately preceding the filing of the petition.

Under Indiana Code 31-15-3-4, a legal proceeding for legal separation may commence when one party files a petition for legal separation with the court. Once the petition is filed, the other party will be served a summons and is then entitled, under Indiana Code 31-15-3-8, to file a responsive pleading or counteraction to the petition.

All petitions for legal separation must be verified and contain the following information:

• The residence of each party
• Each party’s length of residence in the state and county
• The date of the marriage
• The date on which the parties separated
• The names, ages, and addresses of any living child (under the age of 21) and any incapacitated of the marriage and whether the wife is pregnant
• The grounds for legal separation
• The relief sought

If the court reviews the petition and determines that the petition is compliant and the conditions required for a legal separation exist, it may issue a decree for legal separation under Indiana Code 31–15-3-9. Following this decree, either party may then file related actions for spousal maintenance, child support, child custody, and the possession of property. These matters are often contentious and complex, therefore it’s best to enlist the services of a skilled Indiana family lawyer to help identify the steps that need to be taken to protect your rights and to file those actions on your behalf.

One final element regarding legal separation and divorce in Indiana to note is that the two actions cannot take place at the same time. Therefore, if an action for dissolution of marriage (divorce) has already been filed, a decree granting a legal separation cannot be issued by a court. Furthermore, a couple must wait sixty days after filing a petition for legal separation to file for divorce in Indiana.

Questions about Legal Separation or Divorce in Indiana?

There’s almost nothing more taxing than dealing with marital strife but choosing to move forward in some manner may provide you with a certain level of comfort and space so that you can work on figuring out the future. If you’re weighing your options between legal separation and divorce in Indiana, or need help initiating and managing a separation, the Indianapolis attorneys at Keffer Hirschauer LLP are here for you. We can help you sort out your wishes, goals, and requirements for the future, and craft a course of legal action tailored to your best interests. To speak with an attorney today call 317-857-0160 or complete our online contact form to schedule a free consultation.