Do You Have to Be Separated in Indiana Before You Get Divorced?

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In some states, married couples must live apart for a set period of time before they file for divorce. This is not the case in the state of Indiana. But that doesn't mean that getting divorced in this state doesn't have its rules. Anyone considering filing for divorce in Indiana should get an overview of the Indiana dissolution laws and the hoops a couple must jump through to untie the knot.

Fault and No-fault Divorce

In yesteryear, most, if not all, states required that a spouse set out a good reason before being able to file for divorce. Possible reasons included adultery, insanity, brutality and having a venereal disease. Today, all states allow no-fault divorces, where either spouse can file for divorce on neutral grounds like "incompatible differences."

Some states, including Indiana, allow both types of divorces. When preparing a petition for divorce, the spouse must state the grounds, whether it is no-fault or at-fault. The ground for a no-fault divorce in Indiana is "irretrievable breakdown of the marriage."

Note that the party filing for no-fault divorce does not have to present any evidence of irretrievable breakdown of the marriage. One spouse's assertion is sufficient even if the other spouse disagrees with the dissolution of marriage. The responding spouse cannot prevent a divorce on no-fault grounds.

Grounds for At-fault Divorce

Under Indiana law, there are only three grounds for an at-fault petition. If a party opts for an at-fault divorce, they will have to show the court convincing evidence of one of these circumstances:

  • Felony conviction during the marriage.
  • Impotence during the marriage.
  • Incurable mental disease that has persisted for at least two years.

Requirements to File for Divorce in Indiana

A person must be a resident of Indiana for at least six months and a resident of the county in which they file for three months before they can file a divorce petition in the state. Alternatively, it is also permissible to file for divorce in Indiana if the responding spouse has met those residency conditions.

Conversely, a spouse can live in Indiana for six months and file for divorce, then move out of state while the petition is pending. The only exception is if a couple has minor children, the children cannot be moved out of state until the divorce is final and child custody issues resolved. If a spouse does move out of state during the pendency of the dissolution, they will have to return to Indiana to attend mandatory hearings in court.

Procedure After Filing for Divorce

The spouse who files for a divorce in Indiana must pay the court filing fee. In Indiana, the fee varies from county to county, generally under $200. The dissolution papers must be served on the other spouse, usually by a process server. After the responding spouse reviews the petition, they can file an answer to the petition. If it is an at-fault divorce, the spouse can deny the allegations. They can also give their view on child custody issues, as well as child and spousal support issues.

After the documents are filed, the divorce case is assigned to an Indiana judge. If there are minor children involved, the court will set a "provisional" or "preliminary" hearing to discuss the issues. At this hearing, the court listens to both parties, then issues a provisional order about custody, visitation, family support and property. This order lasts only while the divorce case is pending.

Contested or Uncontested Divorce

Sometimes the divorcing spouses agree on all of the issues raised in the dissolution case. The hardest issues arise when there are small children, and custody is contested. Aside from child custody issues, couples divorcing in Indiana must also talk through property issues and spousal maintenance and child support issues. When the spouses agree on all the issues of the divorce, the divorce is considered an uncontested divorce or “divorce with agreement.” These are usually the fastest divorce proceedings.

If the spouses are not able to iron out all of their issues, the divorce is not an uncontested divorce in Indiana. But if they agree on most, but not all of the issues, there is a type of Indiana divorce called a “bifurcated divorce,” where the spouses submit a partial agreement to the court. This is slower than an uncontested divorce, but faster and easier than a contested divorce.

Property Division in Indiana Divorces

Indiana is not a community property state; it is an equitable division state. But still, in Indiana divorces, property will generally be split between the two parties. While that does not mean each party will get exactly 50 percent, marital property is usually divided more or less equally.

There are exceptions. Sometimes the court will award one spouse more property than the other if good cause is shown. This can involve matters like spousal contribution to the marriage, child custody and the earning ability of the parties.

Indiana Divorce Court Orders

At the final divorce hearing, each party can present evidence and witnesses. The court resolves the disputed issues and sets them out in a final order of divorce, which can contain completely different provisions than the provisional order.

The final divorce order cannot go into effect until the Indiana cooling-off period passes. After a spouse files for divorce in Indiana, the parties must live apart for at least 60 days before the divorce can be finalized. This does not mean that every divorce can resolve 60 days after it is filed. When the spouses cannot agree on critical issues like child custody, family support or the division of the marital assets, it can take far longer than 60 days to finalize the divorce.

Filing for Legal Separation in Indiana

Just because Indiana does not require legal separation before a divorce does not mean that legal separation is not an option. This is a temporary alternative to divorce, a legal status where a couple stays technically married but lives apart and maintains separate finances. In most states, this type of legal separation can last forever, but that is not the case in Indiana. Under state law, an Indiana legal separation can last only one year. At that point, the spouses have the option of returning to their married status or continuing with the divorce.

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