Indiana Laws for Separation Before Divorce

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In Indiana, married couples who wish to split up have a few options. They can get a legal separation, which allows them to stay married while apart for up to a year before agreeing to reconcile or they can get a divorce. A couple does not need a legal separation in order to divorce, but they will have to wait 60 days before the court finalizes their divorce.

Differences Between Divorce and Legal Separation

Indiana family law allows both divorce and legal separation. A divorce proceeding enables a couple to legally end their marriage. One spouse files a petition for divorce with the county clerk and negotiates with the other spouse the terms of the split, such as the division of marital property, custody arrangements, child support and spousal maintenance. If the two parties cannot agree on those issues, they can ask the court to help settle the dispute. When a judge signs the final court order, the marriage is legally over.

A legal separation proceeding, on the other hand, allows married couples to stay married while deciding if they will reconcile or divorce. During this time, they can address child support and custody, spousal support and visitation issues. If a spouse wants to marry another person while separated, they must ask the court to change their case from a separation to a divorce.

Filing for Legal Separation in Indiana

To get a legal separation in Indiana, at least one spouse must be a state resident for at least six months before petitioning the court. They must be a resident of the county where they file the petition for more than three months and give the court a legal reason for the request.

Some states allow couples to remain legally separated indefinitely. However, Indiana has a time limit on legal separation – it cannot continue for longer than 12 months. At that time, the couple must decide if they will reconcile or seek a divorce.

Filing a Petition for Legal Separation

A spouse who wishes to get a legal separation must file a petition at their county clerk's office. After giving the clerk the required information and paying the fee, their petition enters the court system. The clerk's office then sends a notification of the filing to their spouse.

The petition must contain these items:

  • A title that states: "In Re the legal separation of _ and _" and lists the full names of each spouse.
  • Names of the couple's children age 21 and younger, as well as any incapacitated children.
  • Wife's pregnancy status.
  • Dates of marriage and separation.
  • Home address.
  • Grounds for legal separation.
  • Information regarding the relief they seek.

Making a Separation Agreement

Before a court grants a legal separation, the couple must work together to create a separation agreement. Its terms must be in writing and outline their plans regarding division of property, spousal support, visitation and other factors affected by the decision. This agreement is valid until they reconcile or divorce. If they ultimately decide to end their marriage, the court may merge the terms of the separation agreement into its final dissolution judgment.

A court will always consider the effect of legal separation on a child and take into account their best interest. It will assess each parent's ability to care for them, examine whether the spouses encourage the children to have a relationship with the other parent, and investigate each parent's ability to provide everyday necessities.

Filing for Divorce Without Legal Separation

In the state of Indiana, a couple does not have to legally separate before divorcing. If they wish to go directly to divorce, they must file a Petition for Dissolution of Marriage. A woman who wants to restore her maiden name can put it on her petition as part of the relief she seeks. The court will grant the name change when the case ends.

Sixty days after the spouse files the Petition for Dissolution of the Marriage, the court will enter a summary dissolution decree without a final hearing if the filing spouse has signed, verified pleadings from both parties with a written waiver of the final court hearing and a statement that there are no contested issues in the divorce or a written document showing that contested issues have been settled.

Legal Grounds for Divorce

Before a couple can request a dissolution of their marriage, they must state a legal reason. Indiana is a mixed "fault" state, so a couple has the option of using no-fault or fault-based procedures for ending their marriage. They may request a no-fault divorce (irreconcilable differences) if they no longer get along with their spouse and feel there is no possibility of repairing the union.

The state also allows for fault in divorce cases, but only under three circumstances:

  • A felony conviction of either spouse after getting married.
  • Impotence that exists at the time of marriage.
  • Incurable insanity of either spouse for a minimum of two years.

Trial Separation in Indiana

If a couple is not ready for divorce or even a legal separation, they can agree to a trial separation. This is not a process the court takes part in – it is just a simple agreement made between the two parties.

Although it is an informal split, the couple can voluntarily negotiate issues such as child custody and support, where they will live during the separation and how they will pay their expenses. It also allows them to spend time away from each other to decide how they want to move forward in their relationship.