Legal separation and divorce are two separate options for Indiana residents who no longer wish to remain married. While a divorce will formally end the marriage, a legal separation merely allows the couple to live apart for a specified time to decide whether they want to keep working on the marriage or obtain a divorce. Legal separation and divorce are similar in many ways, but differences exist.
Legal separation and divorce serve two separate functions, according to Indiana Legal Aid. A legal separation does not end a marriage. It simply allows a married couple to live apart while they determine whether to stay married or to separate. A divorce, also known as a "dissolution of marriage," ends a marriage. Couples who are legally separated are still married, but after a divorce, the partners are single again.
Indiana Code 31-15-3-9 specifies that a legal separation cannot last longer than one year. Once a year has passed, the legally separated couple must decide whether to remain married or to file for divorce. A divorce, however, is final once the required waiting period has ended and all issues are settled.
To grant a legal separation, an Indiana court must find that conditions in the marriage are currently so intolerable that the couple cannot live together, but that the marriage itself should nevertheless be maintained. In a divorce, on the other hand, an Indiana court must find merely that an "irretrievable breakdown of the marriage" has occurred. Indiana is a "no-fault" divorce state, meaning that neither spouse has to prove the other one did anything wrong to obtain a divorce. It is not necessary to be legally separated before filing for divorce in Indiana, but a period of legal separation in which the couple was unable to repair their relationship may help the court determine an "irretrievable breakdown" has occurred.
The benefits of a legal separation in Indiana include offering a "cooling-off" period before either spouse takes the final step toward divorce. Also, during a legal separation, the court will enter temporary orders for child support, child custody, spousal support and counseling, if the couple should need court supervision of any of these decisions. Legal separation also allows one spouse to remain on the other's health or life insurance policies. Benefits of a divorce include orders for child and spousal support and custody. The divorce also allows the parties to go their separate ways. Finally, after a divorce is final, one spouse can no longer be held responsible for personal debts owed by the other spouse, which may not be true during a legal separation.
A legal separation in Indiana is still a marriage, even if the spouses are living apart. Although it offers a period for reflection, it also means that debts incurred by the couple are the responsibility of both parties, and that the couple must try to work together to mend the marriage. Either spouse may ask the court to order counseling, but the court cannot order counseling against either spouse's will or if one spouse has been abusive toward the other or toward the children. Spouses cannot file for a legal separation if a petition for dissolution of marriage, or divorce, has already been filed. However, spouses legally separated may file for divorce before the one-year limit on legal separation has expired.
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