Friday, March 6, 2009

Alternatives to Divorce: Legal Separation in Indiana

The Indiana statutes for legal separation are found in IC 31-15-3. Doing some background research for this series, I checked out West's Annotated Statutes to see what case law exists. As usual with the West annotations, they do need a close look to make sure how much they match up with the statute. Today, I am going to give just an overview of the cases. I have other posts that will detail the cases. Let me say no much case law exists.

  • West notes two cases under IC 31-15-3-4: Sachs v. Sachs, 97 Ind.App. 224, 185 N.E. 291 (1933), and Richey v. Richey, 128 Ind.App. 503, 149 N.E.2d 126 (1958).
  • Under 15-3-6, I found Sachs again and Horlander v. Horlander, , 579 N.E.2d 91, (IndApp. 1991), rehearing denied, transfer denied (and which has nothing substantive to say about legal separation).
  • For 15-3-9: Shafer v. Shafer, 219 Ind. 97, 37 N.E.2d 69 (1941).
It also appears that 15-4-1 applies and Stanley v. Stanley, 190 Ind. 528, 131 N.E. 35 (1921) and Scott v. Scott, 17 Ind. 309 (1861) will apply to legal separation.

Notice the ages on these cases. These remain good cases - the appellate courts have not overturned them. However, I think everyone will see two things as we go along: 1) the case law comes out of a different family law context than exists now and 2) that there are reasons why these cases remain good law because of this changed family law context.


Kysa Crusco said...

New Hampshire has a legal separation option, which I think is an important alternative to divorce. Although much has certainly changed in family law, for some clients it is important that they receive a separation and not a divorce. Without the separation option, they would have no recourse for court orders regarding property division, alimony, etc.

Sam Hasler said...

Oh, I have bene very remiss in responding. I notice one difference with New Hampshire - we lack alimony. However, we do have maintenance. I hope soon to get to the other alternatives to divorce, but let me say here that we procedures for support that do not require filing a divorce.

I have been waiting on a client and the filing of my first separation in over ten years. We will see if Ms Caruso and myself are correct - legal separation provides the certainty of legally enforceable rights.