Only a few significant variations exist between legal separation and divorce in Indiana.
To obtain a legal separation or a divorce, you must first go to court and explain why you want to leave your spouse.
Furthermore, you cannot petition for legal separation or divorce unless you or your spouse have lived in Indiana for at least six months and in the county where you intend to file for at least three months.
You can also resolve child custody, marital asset distribution, child support, and alimony issues during the divorce and legal separation processes.
However, if a couple receives a legal separation order in Indiana, the marriage does not dissolve as it would with a divorce.
Furthermore, legal separation is temporary and can last up to a year. All orders pertaining to key issues, such as property division and alimony, conclude concurrently with the separation.
Divorce, however, is permanent, as are the associated orders resulting from the divorce.
Furthermore, while a legal separation can be based on any reason, a divorce can only be based on the following:
- Physical inability to reproduce since the beginning of the marriage;
- Incurable insanity of either spouse for two or more years;
- An irretrievable and complete breakdown of the marriage; and
- A felony conviction of either spouse at any point during the marriage.
While counseling cannot be ordered by the court when seeking a legal separation, the court can order spouses seeking divorce to attend counseling if the court believes there is a possibility of reconciliation between the spouses, if the couple has any children under the age of 18, or if either spouse requests counseling.
What Documentation Do I Need to File for Divorce?
To apply for divorce in Indiana, you must complete and file a Verified Petition for Dissolution of Marriage and a Summons.
Moreover, suppose you and your spouse are not currently in agreement on all problems that may arise during a divorce, such as the division of marital property and alimony.
In that case, you must file a Confidential Form and a Notice of Provisional Hearing. All of these pieces of documents have standard forms available through the Indiana Courts’ Self-Service Legal Center.
If you already have a legal separation agreement with your spouse or are in the process of obtaining one when you decide to file for divorce, you must file the paperwork with the same court where you filed your legal separation agreement.
You are only required to notify your spouse of your intention to file for divorce once you have filed the necessary paperwork. At this point, you must serve them with a copy of the documentation that you have filed with the court.
Separate Property vs. Community Property
Indiana is an equitable division state, implying that if an equitable division is ruled to be unfair, the court may not split all of the property equally. Even if an equal division of all property is presumed to be fair, the court may divide the property unequally if, after examining various circumstances, it concludes that such a division is the fairest to all parties.
A court will consider each spouse’s contribution to the acquisition of property, the economic circumstances of each spouse, and whether the property is marital or separate when deciding how to divide the property.
Unless you can prove that all of your and your spouse’s property is separate property and thus not subject to division, the court will assume that all of your and your spouse’s property is marital property and so subject to division.
The majority of property gained by either spouse during a marriage is considered marital property.
Separate property, on the other hand, refers to property owned by a spouse:
- Prior to marriage
- Inherited or received as a gift
What Should I Do if Children Are Involved?
Child custody and maintenance will be issues in any divorce involving small children. The court will decide how to divide custody based on what is best for the child.
The court will consider the following factors in determining which custody arrangement is best for the child:
- The age of the child;
- The desires of the parents;
- The child’s preference, especially if the child is over the age of 14;
- The child’s relationships with other family members and anyone else who plays a significant part in the child’s life;
- How the child will adjust to their new surroundings, such as school, home, and community;
- The physical and mental health of everyone;
- If the child has been cared for by someone other than the parents; and
- If either parent has abused the child.
If your spouse is granted primary custody of your kid, you may be compelled to pay child support to assist in covering the costs of raising your child.
The child’s level of life will determine the amount you may be expected to pay if the divorce did not occur, your and your spouse’s financial needs and resources, and the child’s educational needs as they relate to their physical and mental health.
Child custody and support problems can be hard and contentious after a divorce, but addressing them as part of the divorce proceedings is better.
Suppose you wait until after the divorce is finalized to deal with these issues more permanently.
In that case, you will face the additional expense of hiring a lawyer to represent you and help persuade the court to change the preexisting arrangement that it had already deemed to be in the best interests of your child, which is a very challenging thing to do and will almost certainly require legal assistance.
Is It Necessary for Me to Pay Alimony?
If one spouse requires financial assistance, the court may order the other spouse to pay alimony, also known as maintenance, under Indiana law. In Indiana, maintenance is only provided if one of the following conditions is met:
- If the spouse is physically or psychologically disabled to the point where their ability to sustain themselves is materially harmed;
- If the spouse does not have enough financial resources to live for themselves, even after deducting their share of marital property, and is caring for a kid whose physical or mental incapacity prevents them from working.
Suppose the spouse has had to put their employment, education, or training on hold to care for the home and/or children, this means they require rehabilitative maintenance until they gain the appropriate training or education to obtain proper employment.
It is usually up to the court to decide how much maintenance should be paid and how long it should endure. However, Indiana law says that no more than three years of rehabilitative maintenance can be ordered.
Where Can I Find the Best Divorce Attorney?
Divorce is an emotional, stressful, and confusing journey, and navigating the legal system to ensure you are treated appropriately during the divorce process can only add to your stress.
Speaking with an Indiana divorce lawyer about the divorce process and your specific situation will alleviate at least some of the stress that divorce is known to create. A lawyer can be helpful when going through the divorce process and asserting your rights.
