While not common, legal separations are filed from time to time. A legal separation decree will be granted upon three evidentiary showing:
Usually, a legal separation is filed as a “wake up” call to the other spouse. Most of the time the spouses who are legally separated attempt marriage counseling or other therapy to try to make their marriage work. In addition, a legal separation puts would-be creditors on notice the parties are separated and this may impair access to credit.
The reason legal separation exists is because marriages are favored in Indiana (and in all states), and if it is possible to “save” a marriage, this is favored. Like divorce and paternity cases, it is not necessary to answer this lawsuit, but a party may file a response depending upon strategy he or she decides. That said, legal separation decrees expire after one year. It is somewhat common for parties who do not work through their issues to ask the divorce court to convert their legal separation to a divorce matter so that they may proceed with a divorce.
That said, the legal separation cannot be for a period of more than one year. The parties, given certain disparities in income, may obtain maintenance for the lower earning spouse to live upon while separated but it cannot last longer than one year, the maximum duration of the legal separation decree. Perhaps one of the most common reasons for filing a legal separation is that the parties desire to try to work out their issues and, sometimes, use this time to enter into a post-nuptial agreement in case the parties do divorce in the future.
If the legal separation fails and the court converts the matter into a divorce proceeding, the time of the legal separation counts toward the sixty (60) day waiting period for divorce. In other words, it is possible if the parties have been legally separated for ninety (90) days, and the court converts the legal separation into a divorce, the final hearing can be held in the immediate future. However, most of the time, discovery must be completed in order to determine the value of the marital estate and then the parties might have to go to mediation to try to resolve their divorce with a mediator.
While rarely used, every divorce is unique and in the right circumstance a legal separation may make sense to meet a certain legal objective, such as a “wake up”
call, therapy, family counseling, or putting creditors on notice the parties are legally separated. The Divorce Act (statutes) and the Indiana Supreme Court’s trial rules provide numerous resources for counsel to address your unique domestic issue. Ultimately, to make the most of you turbulent time in your marriage and to make future plans, acquiring skilled legal counsel is the key to your future. At least that is how we at Ciyou & Dixon, P.C. view domestic cases.
Proven & experienced attorneys successfully advocating & resolving complex cases for over 25 years