What Is Legal Separation in Indiana?
At a glance, legal separation and divorce in Indiana may seem like two sides of the same coin, two different ways to end a marriage. While they are legally similar in some respects, they can lead to vastly different results and outcomes. Both options outline how spouses divide marital property and debt, handle joint bank accounts, roads, and governance of children. However, divorce is the dissolution of the marriage, under Indiana law, while legal separation allows spouses to live separately while remaining legally married. Sometimes, legal separation is used by couples who want to live apart but whose religious beliefs oppose divorce. In these cases , spouses may obtain a legal separation to set out financial obligations and parenting plans without disavowing their marriage. Legal separation can also be the right choice for couples who are separated for a short time and want to resolve legal matters like custody, child support, and property division. After a period of legal separation, they may choose to reunite or to pursue divorce. In Indiana, request for legal separation is made with a legal petition filed with the court. A thorough financial disclosure is provided to the court, in much the same way as one is provided in a divorce. In the case of legal separation, at the end of the process, the spouses are still legally married, while in a divorce, the marriage is dissolved according to Indiana law.
Requirements for Legal Separation in Indiana
In Indiana, legal separation is governed by Indiana Code section 31-15-2-16. Just as Indiana is a no fault divorce state, separation is also a no fault matter between the parties. Parties cannot agree that one party is at fault for the separation. As stated above, the parties are required to live apart for at least one year before requesting a divorce. This means that filing a legal separation does not allow you to shorten your wait period for a divorce. In fact, once you file for legal separation you are giving up your legal requirement to file after a one year waiting period and simply granting the other party a legal way to end the legal separation without having to file for divorce with the Court. Parties do not need to have been married for a period of time before filing for a legal separation. However, one party must have resided in Indiana for the past six months or more prior to filing for legal separation. Additionally, at least one party must have resided in the county of filing for the past three months. Similar to a divorce decree, the party seeking the legal separation will first need to file a petition with the Court, a summons for the non-filing party, and verify with the Court of the separation agreement. Once the mandate is signed, the parties can obtain either a legal separation or a dissolution of marriage.
Separation Vs. Divorce in Indiana
Unlike some states, when you enter into a legal separation in Indiana, you have not voluntarily "un" married yourself. You’ve asked the court to review your particular set of circumstances and determine for you what the proper terms of your marriage contract will be going forward. Because the terms of a marriage are usually reviewed and determined by the parties to the marriage rather than a judge, legal separation may be one alternative for you and your spouse to think about before pursuing divorce.
The advantages of separation before divorce include some wiggle room for you and your spouse to attempt to work things out given certain separation points, as compared to divorce where the legal proceedings are irrevocable. A separation may also give you and your spouse time to work out custody and child support arrangements with your children without the pressure of attending court hearings. A separation may also benefit you if you are having issues with drug and alcohol abuse or have an Alternatives to Incarceration or Work Release requirement to your criminal case. You can have these issues under control and still work on your marriage.
The disadvantages of separation (as compared to divorce) include the fact that you may not be able to get out of the marriage after the required period of separation. Additionally, when the court lays down the law to the parties and orders terms, if you or your spouse can’t live with those terms, then you are stuck going to court to change them—similar to going through a divorce.
Essentially a divorce and a separation are the same thing. The real difference is that a divorce is the action of terminating the marriage itself. With separation, you basically are still married at the end of it. Many people express a concern that if they file for divorce, then there is something "really wrong" or "it’s over." Legal separation, on the other hand, is the equivalent of a "trial divorce." If you go six months under a legal separation agreement and can’t work it out, then you can file for divorce.
Financial Effects of Separation in Indiana
It is also important to note that legal separation does not immediately impact the parties’ tax filings. Reflecting the factual circumstances the relevant calendar year, the legal separation order does not address issues of dependency exemption or head of household filing status on the parties’ subsequent tax filings until a divorce has been finalized. However, the parties may claim a "married-filing-jointly" status if they both agree to this precondition in writing and then file their joint return with the Internal Revenue Service. Married filing separately is an option if the parties cannot agree in writing on filing jointly but still wish to file a joint federal income tax return. However, separating spouses should consult a tax preparation professional, as filing separately may not be cost effective and may have detrimental tax implications.
One or both parties may have new financial considerations once separated. Like obtaining a divorce, a legal separation is a court order that creates new rights and duties between the parties. Sometimes parties are obligated to pay additional premiums when covered under the other spouse’s health insurance policy. Spouses may have previously shared a comprehensive health insurance plan through an employer and could be required to purchase a more expensive plan due to being unable to qualify as an employee’s dependent for purposes of enrollment and coverage. Likewise, a legal separation terminates any existing agreement the parties may have regarding distribution of expenses. Separate incomes often result in more individual expenses.
Some parties already have an informal system in place for expense allocation. For instance, Tracy might continue interior decorating her Zionsville boutique, supporting herself using her income as well as Derek’s earnings, who spent years opening a restaurant in downtown Indianapolis. Now that the couple has separated and Tracy needs to pay for her own insurance benefits and cover a part of what had been the couple’s joint expenses, she is realizing the necessity of creating a budget. Her spending finds a comfortable fit in her income as a single person. She can continue to manage living expenses comfortably because her earnings exceed her budget. In fact, Tracy starts to enjoy more discretionary income.
Custody and Separation in Indiana
For those who are married and think separation is the only option for you to be apart from your spouse, Indiana law does not recognize the idea of legal separation. You may, however, separate out your legal issues into a Dissolution of Marriage action along with a request for informal discovery and/or temporary orders. While a Dissolution of Marriage is a complete, formal action in front of a judge to legally terminate the marriage, a legal separation typically entails nothing more than the parties just living apart. You may ask, though, what are my rights during that time? What happens to my children or my parental rights?
Typically, we have two types of custody: physical and legal custody. Physical custody is where the child resides – which parent’s house is the primary residence for the child. Legal custody is the authority to make decisions on behalf of the child concerning education, healthcare, religion, and other issues. We can have a joint, primary, or sole custody arrangement.
During a Dissolution of Marriage action, the court typically appoints a guardian ad litem (GAL) to represent the children and make recommendations to the court as to their best interest. The Dissolution litigation process involves the exchange of information between the parties and/or their attorneys, the temporary relief hearing, mediation, and a final hearing.
In addition to the basic rights of taking care of the children -dressing, feeding, schooling, transporting , and spending time with them – there are also the legal obligations to financially support the children. In Indiana, child support is determined based on a statutory worksheet that requires the parties to input certain information about their expenses and income to determine the presumptive child support obligation of the non-custodial parent. When there is a deviation from that calculation, the parties are required to give the court a reason for the difference.
Temporary custody orders are often issued at the start of a Dissolution of Marriage case; it is often the most likely time you will get more privileges than you will later. Temporary custody orders may provide that the parent with primary physical custody has exclusive use of the home during the pendency of the proceedings, use of the car, and shall allow the other parent to obtain some clothes and personal items from the home upon request. The orders could also set out parenting time for each parent with the child, including weekday visits and overnight visits over the weekends. They may also prohibit the parent from removing the child from the state for more than 45 days or for more than 30 days without the other parent’s consent. Many courts also issue a temporary order regarding child support.
Of note, evidence that parents agree on custody arrangements may be given significant weight in the final order. That is to say, if the parents agree that a certain parent should have primary physical custody of the child, that’s a strong argument that judge will consider.
How to Get a Legal Separation in Indiana
Filing for legal separation in Indiana is less common, so stay abreast of the process by reading through the following step-by-step guide. Some steps may require the input and support of a legal professional, which is where a qualified Indianapolis divorce attorney comes in — but you can rest assured that you will follow the same steps whether you act independently or with assistance.
Prepare with a consultation. Before filing for legal separation, you should sit down with an experienced attorney to discuss your unique situation and how Indiana law impacts it.
File the petition for legal separation. The necessary forms for a legal separation are known as petitions. You’ll file the necessary petition with your local courthouse. Along with it will come your proposed temporary order, which may be a separate form. Your petition and proposed temporary order must include information regarding your health insurance, spousal support, children and maritial property.
Attend the hearing. In some cases, you or your attorney will be required to represent you at the hearing for your temporary order. This often happens following your initial filing of separation paperwork, but before a trial or final hearing on your request for separation. The hearing will be presided over by a judge who will ultimately decide whether or not to grant your legal separation based on the arguments made during this hearing. The judge will also likely decide upon terms for your temporary order. This hearing typically occurs 20-50 days after filing for legal separation.
Work out other separation issues via mediation. Most Indiana courts require couples to attend mediation for all matters other than the division of money. This is a valuable opportunity to work through issues in a logical, civil manner, as opposed to a formal court hearing. You and your spouse will negotiate all relevant issues of the legal separation with a trained neutral party who’ll help guide the two of you toward an amicable solution. After the mediation, a written agreement is drafted and then filed with the court. At that point, it’s up to the judge to approve the terms.
Attend the final hearing or trial. If you and your spouse can’t reach an agreement amidst the legal separation process, you’ll have to attend a final hearing or trial in front of the judge. A judge’s decision will be made 45 to 60 days after this hearing, so it’s best to have a trusted attorney on your side to explain the process and potential outcomes for your case.
Helpful Resources and Legal Aid for Indiana Separations
The process of legal separation in Indiana can be complicated, emotionally taxing and difficult to manage without proper legal guidance. Fortunately, there are resources available to help couples considering this option prepare to take the next step.
MediateIndiana is a state affiliate of the Association for Conflict Resolution. This organization serves to "advance the practice and public understanding of mediation." MediateIndiana offers "free and low-cost mediation services to families living in Indiana." These services extend to divorce, custody, guardianship, visitation, domestic relations, discrimination, workplace, and small claims mediations. This service is an excellent first step for any couple who is thinking about separation, as the process helps couples navigate their issues with the assistance of third-party mediators.
The Indiana Legal Services website features a variety of programs aimed at providing critical legal support to low-income individuals and families. Its mission is to assist those living at or below 125 percent of the federal poverty level, to ensure them access to competent and plentiful legal representation. The site helps connect individuals with free civil legal services such as legal aid, foreclosure prevention workshops, housing stability programs and elder law services. Also featured on its website is a list of "tipsheets" offering helpful information on a variety of topics such as what to do when your spouse is filing for divorce, how to handle relocation with children and what to expect from a divorce proceeding. In addition, the site features a list of resources organized by county, allowing individuals to easily seek out local support.
The State of Indiana’s Access to Justice website offers information about the costs associated with both hiring an attorney or representing yourself in a legal proceeding. It also features a list of websites where individuals can search for free legal aid within their locality. The resource page categorizes the information you will need to assist you with your issue, including resources for family law, rural aid and general legal questions.
TechBridgeWorld is a Carnegie Mellon University project aimed at "applying technology to address social challenges and transform communities." The project lists a variety of online resources that can be helpful to families dealing with legal separation, including parenting resources, tips for communicating with children, looking after a new-parent support group and how to assist victims of domestic violence.
Frequently Asked Questions About Indiana Legal Separations
In Indiana, a legal separation is a time during which spouses live separately while remaining legally married. It allows couples to legally separate from each other without divorcing. The obligations for support, child support, distribution of assets, division of debts, custody, visitation and mediation of disputes are similar to a divorce. Legal separation is often used as a precursor to divorce. Financial issues can be resolved, and parents may be able to work out a workable visitation schedule for children before a divorce proceeding.
Frequently asked questions and their answers are below:
1. Does a legal separation mean you are really divorced?
No. You remain legally married and have not satisfied Indiana’s statutory requirements for divorce. Certain rights and obligations arise on separation, but the two spouses have not yet become legally single.
2. How long are you separated before you are divorced?
A legal separation is not always a step on the road to divorce. Sometimes , the parties separate so that they can evaluate whether divorce is really the correct decision for them. However, it can take several years for parties to reach a final decision. The average May 2015 wait time for a final divorce hearing was 10 months in Indiana!
3. Are legal separations expensive?
As with any family law litigation, the parties’ expense is directly proportional to how well the parties can work together on financial issues. With good communication both parties can save money by agreeing to temporary orders and eliminate the need for a contested hearing.
4. Do you have to live in the same house to be legally separated?
No. Legal separation does not require parties to live in the same house, cause divorce, or separate. Living apart for six months meets the requirements for filing a divorce in Indiana, but filing for divorce and separating are not mutually exclusive. These are just a few of the legal separation basics in Indiana. Contact a family law attorney in Indiana if you have more questions about legal separation.