Legal Separation in Indiana

Legal Separation in Indiana

Are you thinking about divorcing your spouse?  Is divorce something that is either impossible or improbable?  What are your options?  There are other options besides pursuing a divorce.  You can, instead, file a legal separation from your spouse.  You can do this when you don’t want a divorce, but you cannot currently live with your spouse.

You may be wondering what the difference is between divorce and legal separation.  They are both means to separate from your spouse when cohabitation is made impossible.  Divorce is when a judge legally ends your marriage.  Legal separation does NOT end the marriage.  However, the court makes determinations on issues that need to be decided in the interim.  I.C. § 31-15-3-11.  Such issues that the court may intervene on are property disposition, division of debts, and issues pertaining to custody, parenting time and support for the parties’ children.  Id.  Essentially, a legal separation is like a “temporary divorce”.

A legal separation is often pursued instead of divorce when there is still a glimmer of hope to reunite with your spouse.  Indiana Code § 31-15-3-9 specifies that a legal separation cannot last longer than one year.  Once a year passes, the legally separated couple must decide whether to remain married or to file for divorce.  A divorce, on the other hand, is final once the required waiting period has ended and all issues are settled.  To obtain a legal separation, you need to file a Petition for Legal Separation.  I.C. § 31-15-3-1.  In your petition, you will need to tell the judge the reasons why you think you and your spouse cannot currently live together.  I.C. § 31-15-3-3.  The court will ascertain that conditions in the marriage are currently so intolerable that the couple cannot live together, but that the marriage should nevertheless be maintained.  Id.  Either you or your spouse must be a resident of Indiana for six months prior to filing the petition, and a resident of the County where you file for three months prior to filing the petition.  I.C. § 31-15-3-6.  Note that if your spouse has filed for divorce, you will not be able to pursue the legal separation venue.  I.C. § 31-15-3-5.

There are many benefits of a legal separation in Indiana.  These include a “cooling-off” period before either spouse pursues the final step towards divorce.  Because the government has an interest in the preservation of marriage, the court wants an amicable result among the spouses.  Indiana legislatures have stated in I.C. § 31-15-9-1 the conciliation procedures may include referrals to any of the following:

  1. The family relations division of the court, if established;
  2. Public or private marriage counselors;
  3. Family service agencies;
  4. Community mental health centers;
  5. Licensed psychologists;
  6. Physicians;
  7. Attorneys;
  8. Clergy; or
  9. Mediators

Further benefits are that the court can enter temporary orders for child support, child custody, spousal support and counselor, and other court supervision.  I.C.§ 31-15-3-11.  Because a legal separation is still a marriage, debts incurred by the couple are the responsibility of both parties.  Therefore, the couple must work together to mend the marriage, or then pursue a dissolution of the marriage altogether.

The attorneys at Banks & Brower are here to guide you through your legal issues 24 hours a day, and we represent clients throughout the state.  Call us at 317-870-0019.