Legal separation and divorce are not the same thing, though they can involve many of the same concepts, including child support and visitation. Whether you choose to become legally separated or file for divorce depends on your own preferences and situations. Keep reading to discover the major differences between these processes so you can decide what is right for you.

What Is the Difference Between Legal Separation and Divorce?

The biggest difference is that divorce legally dissolves a marriage while legal separation does not.

If you go through the process of divorce, once the judge issues a divorce order, you are no longer married. You are both free to marry other people. If you go through the process of a legal separation, even after the legal process is complete, you remain legally married. That means you can’t legally marry someone else.

However, legal separation offers certain unique advantages that divorce does not. For example, couples who choose legal separation can maintain their marital status for religious reasons, allowing them to live separate lives while adhering to their beliefs. Additionally, a legal separation can provide financial benefits, such as the retention of health insurance or military benefits that might be lost in a divorce.

Legal separation also allows for a trial period to assess whether divorce is the right path, without the finality of a divorce decree. During this time, couples can work on their issues, potentially reconciling without the need to remarry.

Moreover, legal separation can help protect the rights of both parties, especially when it comes to child custody and property division, ensuring that both spouses’ interests are safeguarded under Indiana law.

Understanding these differences and the implications of each option is crucial. Consulting with an experienced family law attorney can provide valuable insights and help you make an informed decision based on your specific circumstances.

What Is Legal Separation, Exactly?

Legal separation is a legal process that involves filing paperwork with the courts. It is not the same thing as physical separation. Simply because one person moves out of the shared home and into another residence does not mean a couple is legally separated. To become legally separated, you must file with the courts.

Filing for legal separation in Indiana involves several important steps. First, at least one spouse must have been a resident of Indiana for six months and a resident of the filing county for three months. This ensures that the Indiana court has jurisdiction over the case. The party filing for legal separation must also demonstrate that the marriage is irretrievably broken, or that the couple cannot currently live together but there is a possibility of reconciliation.

Once the legal separation petition is filed, the court may issue temporary orders regarding child custody, child support, spousal maintenance, and division of marital property. These orders are designed to address the immediate needs of the parties while they remain legally married.

Unlike a divorce, legal separation does not end the marriage. Instead, it provides a structured framework for couples to live separate lives while preserving certain marital benefits. This can be particularly advantageous for those who wish to maintain health insurance or military benefits, or for couples who have religious beliefs that prohibit divorce. Additionally, legal separation can serve as a trial period, allowing couples to evaluate their relationship and decide if they wish to pursue a divorce or reconcile.

It’s crucial to consult with an experienced family law attorney when considering legal separation, as they can provide guidance on the legal steps involved and help protect your interests. Legal separation requires careful consideration of various factors, including financial arrangements, parenting time, and the potential impact on social security benefits.

An attorney can also assist in drafting a legal separation agreement that outlines the rights and responsibilities of each spouse during this period. By understanding the legal status and implications of legal separation, couples can make informed decisions that best suit their specific circumstances.

Potential Benefits of Legal Separation

Legal separation affords couples many of the same options that they might have in a divorce for formally managing the distribution of property and issues such as child custody and support. Once a couple files for legal separation, they can also work through the court system to formalize custody, child support, and separation of property.

They would not have this option if they simply separated physically, and not working through some of these issues in a well-mediated or formal legal manner might put a continued strain on the relationship.

So why wouldn’t a couple simply file for divorce if they want legal support for these processes? There are a number of reasons couples might choose legal separation, including:

  • Not wanting to give up on the marriage but realizing that the relationship is in serious trouble. Perhaps one spouse has a substance abuse problem to contend with or the individuals have grown in individual ways and need distance and counseling to find each other again. For whatever reason, many couples find that they need a way-stop in their marriage and that legal separation is a good option for them.
  • Believing divorce might be the right choice but not being sure. In a lot of ways, legal separation can act as a trial divorce. A couple can test how they do apart or whether they’re able to co-parent as they might like before they move on to divorce.
  • Wanting to maintain some financial benefits of marriage. In some cases, couples can retain certain benefits, such as health insurance, government benefits, and tax advantages, even when they are legally separated.

Requirements for Legal Separation in Indiana

Typically, you must be physically separated before or when you file for legal separation. Indiana law also has residence requirements for filing. One of the spouses in question must have been a resident of the state for at least 6 months and a resident for 3 months in the county where the legal separation is filed.

There may be other requirements or important factors to consider before you file for legal separation. This is especially true when there are children or complex financial matters involved. Speaking to an experienced family law attorney before you take any action regarding a legal separation can help you best plan your approach for the most positive outcomes for all.

It’s also important to note that you can’t exist forever in a state of legal separation. Once the order for legal separation is entered, you have 1 year to decide what you want to do. After that time period, the legal separation ends and you’re legally an unseparated married couple again unless you file for divorce.

Do You Have to Be Separated Before You Can File for Divorce?

You don’t have to file for legal separation before you file for divorce. You can even file for divorce without being physically separated. However, the divorce cannot be finalized until you have been separated for at least 60 days. This is a waiting period required by Indiana divorce procedures before courts will finalize a divorce.

Filing for divorce without prior separation can be an emotionally challenging decision, as it often involves navigating complex feelings and practical considerations. It’s essential to weigh the potential benefits and drawbacks of skipping a legal separation.

Some couples may prefer to avoid legal separation due to the desire to expedite the divorce process or because they are certain about ending the marriage.

On the other hand, choosing legal separation before divorce can provide a valuable opportunity for both parties to adjust to living apart, manage financial responsibilities, and establish new routines. This period can also serve as a time for reflection and potential reconciliation, should both parties wish to explore that option.

It’s important to recognize that each couple’s situation is unique, and the decision to pursue legal separation or divorce should be based on individual circumstances and goals. Consulting with an experienced Indianapolis family law attorney can help you understand the implications of your choices, including the impact on child custody, spousal support, and marital property division.

Ultimately, whether you choose to file for divorce immediately or opt for a legal separation first, taking the time to consider your needs and the needs of your family is crucial to making an informed decision that aligns with your long-term objectives.

How to File for Legal Separation in Indiana

Filing for legal separation in Indiana involves several steps to ensure that the separation is recognized by the court. Here is a step-by-step guide to help you navigate the process:

  1. Determine Residency Requirements: Confirm that at least one spouse has been a resident of Indiana for at least six months and a resident of the filing county for at least three months. This is necessary for the Indiana court to have jurisdiction over the separation case.
  2. Prepare a Petition for Legal Separation: Draft a petition that outlines the reasons for seeking separation and any temporary arrangements for child custody, child support, spousal maintenance, and division of marital property.
  3. File the Petition with the Court: Submit the petition to the appropriate Indiana court, ensuring you pay the necessary legal fees associated with the filing.
  4. Serve the Other Spouse: Legally notify the other spouse of the filing by serving them with the petition and any accompanying documents.
  5. Attend a Court Hearing: Both spouses will need to attend a court hearing where the judge will review the case and any temporary orders. These orders may address immediate concerns such as parenting time and financial arrangements.
  6. Consider Legal Representation: It is advisable to have an experienced family law attorney to guide you through the legal steps and ensure that your rights and interests are protected.

The legal separation process can serve as a pivotal moment for couples to evaluate their relationship and decide whether to pursue divorce or work towards reconciliation. By understanding the legal steps involved and seeking professional legal help, couples can navigate the complexities of legal separation with greater clarity and confidence.

Contact an Indianapolis Family Law Attorney for Help With Your Case

Anyone who is married or has ever been married knows that marriage can be messy. When two people do life together to that degree, it’s not always easy. Putting the pause button on a marriage can also be messy, and, obviously, ending a marriage is a major process.

Because marriage—and the management or dissolution of it—is so complex, going through legal separation or divorce on your own isn’t always a great idea. If you aren’t sure you want to stay in a marriage or you and your spouse have reason to believe a legal separation is in order, consider getting legal help.

An Indianapolis family law attorney can help you understand your rights and options, provide guidance on protecting your interests and those of your children, and handle the paperwork and other legal issues so you can spend time working on your marriage or moving on with your life after the end of one.

Call the Law Office of Deidra N. Haynes LLC at 317-785-1832 to speak to our family law team and find out how we can help.