Legal Separation vs. Divorce in Indiana
Fort Wayne attorneys explain the differences and advantages
Divorce is a final and complete dissolution of a marriage, but for some troubled relationships, such finality is neither practical nor desirable. In Indiana, legal separation allows spouses to live separate and apart from each other without giving up every aspect of their marital status and its benefits and protections. If you believe that legal separation might be the compromise solution you’re looking for, the experienced family law attorneys at Shilts & Setlak, LLC in Fort Wayne are ready to help.
How legal separation differs from divorce
Indiana recognizes legal separation, which allow couples to enter an agreement by which they separate their households and finances without dissolving their marriage. These couples must resolve the same key issues as those who divorce, namely spousal support, child custody, child support and division of marital property. Their separation agreement has the effect of a divorce decree, except that they are not free to remarry.
Why choose legal separation instead of divorce?
There are a number of reasons why individuals might prefer a legal separation to a divorce, such as:
- Hope of reconciliation
- Religious objections to divorce
- Need to maintain eligibility for benefits tied to marriage
- Preserving tax advantages tied to marriage
A knowledgeable attorney can explain how the pros and cons apply in your particular situation.
The process of legal separation in Indiana
Obtaining a legal separation requires meeting the state law’s residency requirement, just as in a divorce. At least one spouse must be a resident of Indiana for six months a resident of the county in which the action is filed for at least three months.
There are two grounds for legal separation:
- It is currently intolerable for both parties to live together.
- The marriage should be maintained.
If both of these conditions are true, a spouse may file a petition asking a court for a legal separation. The respondent spouse is entitled to file a response. Both the petition and the response contain a section on the “relief sought,” which describes the terms each spouse wants included in the separation order. These terms relate to matters such as spousal maintenance, child support, child custody and the division of property. The spouses can enter an agreement concerning these matters, which the court can then approve and adopt into the decree of separation.
A court will not entertain an action for legal separation and divorce at the same time. A couple wishing to convert a case from legal separation to divorce must wait 60 from the date of filing.
Financial and legal implications of legal separation
The division of finances in a separation degree has the force and effect of a court judgment. It cannot be modified in the future absent a finding of fraud in the proceedings. This is an important consideration, since an informal agreement to live apart does not protect the property interests of either party. One spouse could transfer assets out of the reach of the other, who would have little recourse. To be fully protected, you need a legally enforceable separation agreement or decree.
Impact on children and your parental rights
When parents separate informally, there are no enforceable rights of custody or visitation. Child support can only be recovered through the state Department of Child Services. By contrast, legally separated parents can enforce their rights through the same mechanisms as divorce parents, which makes for greater security for themselves and their children.
Contact our Fort Wayne law firm to discuss legal separation
Shilts & Setlak, LLC in Fort Wayne provides caring and capable representation for clients seeking legal separation in Indiana. To schedule a consultation, call 260-475-3106 or contact our office online.
