Indiana law allows married couples who do not yet wish to formally divorce to petition for a legal separation. They do this by filing certain forms with their county clerk's office. Their petition then enters the court system and their spouse will receive a notification. The court's separation order outlines specifics for child custody and support, visitation, and spousal maintenance payments. Legal separation in Indiana lasts for only 12 months, after which a couple must either get a divorce or reconcile.
Divorce vs. Legal Separation in Indiana
Indiana family law allows both legal separation and divorce, but each legal procedure is different. In a legal separation, as in a divorce, a married couple requests a court order addressing issues such as spousal support or child custody, but in a legal separation proceeding, the couple remains legally married. If either spouse wishes to remarry, they must first get a divorce and ask the court to convert their case from a separation to a divorce.
Divorce is the legal dissolution or end of a marriage. To get divorced, a spouse files a formal request with the court called a "petition for dissolution of marriage." A couple typically works together to negotiate the terms of the split; if they cannot agree on these conditions, either spouse can ask the court to intervene and settle the dispute. After a judge signs the final court order, the spouses are legally divorced and can marry other people if they so choose.
Reasons for Choosing a Legal Separation
Couples may want a legal separation, rather than a divorce, for many reasons. Perhaps they are not entirely sure that they want to end the marriage – a legal separation gives them time to think things out before making a more permanent decision. A couple's religious beliefs may prevent them from divorcing, or one spouse may still be on the other's health insurance, and a divorce would end their coverage.
Legal separation also allows couples to continue filing taxes jointly. If the couple has been married for more than a decade, one spouse may receive Social Security or military benefits from the other. A legal separation, unlike a divorce, can be reversed if the couple chooses to reconcile.
Petition for Legal Separation in Indiana
The process for obtaining a legal separation in Indiana begins when one spouse files a petition with their county clerk's office and pays the required filing fee. Once the clerk's office enters their petition in its system, their spouse receives a notice of the filing. Indiana legal separation forms must include certain information:
- Title must read: "In Re the legal separation of _ and ___" and state the full names of both spouses.
- Names of children who are 21 or younger, as well as any incapacitated children that the couple share.
- Wife's pregnancy status.
- Date of marriage and separation.
- Address of place of residence.
- Relief sought through the separation proceeding.
Indiana requires at least one spouse to live in the state for a minimum of six months and a resident of the county where they will file the petition for more than three months before submitting separation documents. The person filing for separation must give the court a legal reason for the request – the state requires that they demonstrate circumstances that make it intolerable to continue living with their spouse.
The state of Indiana requires the spouse filing for legal separation to state that both spouses want the marriage to continue, and neither has already begun divorce proceedings. The spouses can negotiate the separation's terms or ask the court to intervene. They can also request a marriage or family counselor or even personal protection orders.
Creating a Separation Agreement
Before an Indiana court grants a couple a legal separation, they must create a written separation agreement. This legally binding contract should outline their plans regarding the division of their property, child custody and support, and spousal support. Again, the court will help them negotiate whatever terms they can't mutually decide upon. A separation agreement is valid until the couple divorces or reconciles within 12 months. When the couple agrees to divorce, the court may merge their separation agreement into the final divorce judgment.
When a couple asks an Indiana court for a legal separation, the court considers the separation's effect on their children. If they can't agree on issues of custody or child support, the court will consider what's best for the minors by assessing each parent's abilities to care for them, to provide necessities for them, and whether or not they agree to allow the children to foster their relationship with the other parent.
Attempting a Trial Separation
Some states allow couples to remain legally separated for however long they like, but Indiana is not one of them. Its laws state that a separation cannot last for more than 12 months, at which point they must decide if they will stay together as a married couple or file for divorce. Couples who are unsure can participate in a trial separation on their own.
A trial separation is not a process the court gets involved in – the couple simply takes time away from each other to give themselves the opportunity to reassess their relationship and the possibility for reconciliation. At the end of a trial separation, the couple can then decide to reconcile, begin the legal separation process or file for divorce.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.