In-Depth Look at Legal Separation in Indiana
In order to file for legal separation in Indiana, a person must file a petition in the court where he or she has lived for at least six months. The statute requires a period of separation of at least one year unless both parties consent to a shorter time-period. Indiana does not recognize no-fault legal separation and legal grounds must be alleged that caused the marriage to become irretrievably broken or no longer conducive to a mutually happy marital society (T.W. v. D.A.E., 848 N.E.2d 738 (Ind. Ct. App. 2006)). If the parties have been separated for at least one year and do not contest the dissolution, the Court may dissolve their marriage without holding a hearing as long as proper notice is given. Getz v. Getz, 479 N.E.2d 570 (Ind. Ct. App. 1985). Legal separation grants a person a judgment from the court that suspends obligations of a married couple while they attempt to resolve problems or wait the year to file a divorce . While legal separation does not dissolve the marriage, it does formally establishes a period of formal living apart where the court can equitably divide assets and debts. The terms of the legal separation are exactly the same as a dissolution and a decree of legal separation is just as enforceable as a dissolution decree. A legal separation can be requested on a temporary or indefinite basis. Huber v. Huber, 842 N.E.2d 871 (Ind. Ct. App. 2006). A Decree of Legal Separation can be converted into a Dissolution of Marriage by filing a petition with the Court anytime the parties agree. If the parties are unable to settle marital issues, they should seek the help of a skilled Indianapolis divorce attorney who can negotiate a separation agreement and counsel about the advantages and disadvantages of pursuing a legal separation rather than a dissolution of marriage.
Indiana Divorce Laws and Procedures
Divorce in Indiana is the only legal way to end a marriage. Prior to 1974, Indiana was a fault-based divorce state. Under the now repealed Indiana law, the grounds were either just cause or marital misconduct as further defined in I.C. 31-15-2-5. Currently, Indiana requires a no fault ground for dissolution of a marriage. I.C. 31-15-2-2. A finding of irretrievable breakdown must be established by one spouse requesting the dissolution and a hearing on both parties stating the marriage has irretrievably broken down along with either a waiver of a final hearing (just one party) or a final hearing held with testimony from both spouses to demonstrate the marriage is irretrievably broken. In order to file for a divorce in Indiana, a person must be a domiciliary of Indiana and have been married for at least three months. A case must be filed in the county where at least one party resides in the state of Indiana (sometimes referred to as the residency statute). The case must be filed in either the city or county of residence of the person filing the action (the county where the person filing resides).
Comparing Finances: Separation vs. Divorce
While legal separation and divorce both have financial ramifications, the manner in which assets are divided and the impact on taxes and long-term retirement planning will vary between the two processes, but there are some similarities.
Asset Division
In Indiana the court, whether in a divorce proceeding or a legal separation proceeding, will divide the property of the parties pursuant to Ind. Code 31-15-7-4 which states in part:
(a) In a proceeding for the dissolution of a marriage, the court may divide the property between the parties as follows:
- (1) Without regard to marital misconduct, in a just and reasonable manner and without regard to marital misconduct, except in a disposition of a substantial asset; ….
- (3) [w]ith the award of the estate or the use of the estate to be made in a manner it considers just and equitable, having regard to the economic circumstances of the parties when the possession of the property is granted; and
- (4) [w]ithout regard to marital misconduct, in a just and reasonable manner with the court considering the following factors:
(i) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as homemaker;
(ii) the economic circumstances of each spouse when the division of property is made;
(iii) the conduct of the parties during the marriage; and
(iv) the custodian of each child, giving regard to the best interests of the child.
The court will divide the property of the parties in a similar fashion whether in a legal separation proceeding or in a divorce proceeding.
Spousal Support
There are a number of types of spousal support available in Indiana, which are found within Indiana Code 31-15-2. There is temporary spousal maintenance, spousal maintenance, rehabilitative maintenance, reimbursement maintenance, protective maintenance, and maintenance payable in gross so the spousal support available depends upon the circumstance.
Similar to the asset division laws, the court will treat spousal support the same whether in a legal separation proceeding or a divorce proceeding; however spousal support is an area where a person might ask for separate orders under a legal separation. That is because a legal separation does not dissolve the marriage, therefore, people are not considered to be "spouses." Therefore, if someone were to ask for an order for maintenance, the court must first issue an order that recognizes the parties as spouses, and then the parties may argue about the type and amount of maintenance to be paid.
Debt Responsibility
Much like in the example of maintenance above, the court will divide the debt of the parties in a similar fashion in a legal separation and in a divorce proceeding. That is because, the law looks at the division of assets and debts (liabilities) the same way. While they will treat them the same whether in a legal separation or divorce proceeding, you should also be aware that legal separation does not discharge the obligation of the debt owed to a creditor, therefore a party could be liable for a debt that was ordered to be the liability of their spouse. In other words, if a party is ordered to pay a credit card debt and they don’t, the creditor can seek payment from either party for the amount owed.
Children and the Legal Process: Custody and Support
One of the most significant aspects of both legal separations and divorces in Indiana is how they impact children. This includes parent time (previously known as visitation), parenting time, and child support. Just like in divorce, a legal separation involves determining physical and legal custody and parenting time, along with setting the amount of child support each parent pays. The difference is that the separation is not final; you are still married to your spouse. This means that the courts only grant temporary orders that can be revised by the Court throughout the separation. A lawyer can help you pursue an agreement about parenting time and custody.
When you get divorced, all issues related to children are typically decided in your Decree of Dissolution. That includes parenting time, which is the schedule for where each child goes and when they spend time with each parent. Family law attorneys will work with you to create a plan that serves the best interests of the children. Things the court considers when deciding on a parenting plan include the age of the child , each parent’s wishes, and the child’s relationship with their parents, grandparents, and siblings. Other things include the parents’ ability to care for the child, the community resources available to the family, the health of everyone in the family, including the child, and the child’s personal wishes when the child is 14 years of age or older.
The courts also set child support in a divorce. Indiana follows the Indiana Child Support Guidelines. These guidelines are used by judges to determine how much each parent must pay in child support, and require them to determine the gross weekly income for each parent. Judges also consider other factors, including the needs of the child, the standard of living the child would have enjoyed if the parents had not divorced, the ability of each parent to provide support, and whether anyone else has a legal duty to support the child.
Reunification Considerations
While not necessarily a frequent reason for pursuing legal separation over divorce, reconciliation is a factor to consider. When reconciliation is paramount, legal separation may be the better option, as you can reverse the process at any time. One partner needs to petition the court to end the separation, and then the terms of the separation agreement become the terms of the divorce. This is the only effective distinction between legal separation and divorce, though.
Reconciliation after divorce is possible, but it’s more difficult. Divorce is a final decision, barring pension or inheritance considerations. Under Indiana law, even with no-fault divorce, you must establish a "radical deterioration" of your marriage that cannot be fixed, in order to obtain a divorce, so both partners must be mentally freed from the marriage. Because of this step, the Indiana courts assume that the parties are aware of the consequences of their decisions.
The decision to pursue legal separation or divorce isn’t easy, and neither is the prospect of reconciliation. You and your spouse will need to review the laws in your state and work with your attorney to assess your situation and make the best choice for yourself and your family.
Legal Separation or Divorce: Which is Right for You
Deciding whether to obtain a legal separation or divorce can depend on various factors, both legal and personal. While Indiana law treats legal separation the same as divorce for many purposes, some people find that they are not ready to end the marriage legally. They still have an emotional investment in trying to reconcile. A legal separation can allow them to test the waters of separation while still retaining the legal rights and restrictions of divorce.
In other cases, a legal separation is advantageous due to one or both spouses’ credit history . If one spouse has poor credit, the couple may not be able to obtain loans, even for a business or marital home, if the bad credit history of the other spouse is included on the application. This may be a reason to remain legally married but separate, until they can obtain the loan.
Some couples decide to work through their legal and financial arrangements during a legal separation before filing for a divorce. By having the terms worked out ahead of time, including child custody and visitation, property division, and spousal support, the couple simply needs to file the appropriate paperwork to finalize the divorce. In this way, the separation agreement can save time and even legal fees in the divorce process.