There are only a few major differences between legal separation and divorce in Indiana. In order to get either a legal separation or a divorce, you must go through the court and disclose to the court why you are seeking to leave your spouse. Furthermore, you cannot file for either a legal separation or a divorce unless you or your spouse has lived in Indiana for at least six months and in the county where you plan to file for at least three months. You can also sort out child custody, division of marital assets, child support, and alimony through both the divorce process and the legal separation process.
However, if a couple obtains an order of legal separation in Indiana, the marriage has not ended as it would in the case of a divorce. Also, legal separation is temporary and can only last for up to a year, with all of the orders related to major issues such as property division and alimony terminating at the same time as the separation. Divorce, on the other hand, is permanent, and the accompanying orders stemming from the divorce are not temporary either. Additionally, while you can base your legal separation on any reason, you can only base your divorce on four reasons: 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, a felony conviction of either spouse at any point during the marriage. While counseling cannot be ordered by the court when one is seeking a legal separation, the court has the power to order spouses seeking a divorce to attend counseling if it believes that 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 Paperwork Do I Need to File for Divorce?
In order to file for divorce in Indiana, you will need to complete and file a Verified Petition for Dissolution of Marriage and a Summons. If you have children, you will also need to file a Confidential Form. Additionally, if you and your spouse are not currently in agreement on all of the issues that could pop up during a divorce, such as division of marital property and alimony, you will need to file a Confidential Form and a Notice of Provisional Hearing, as well. There are standard forms for all of these pieces of paperwork readily available through the Indiana Courts’ Self-Service Legal Center. If you already have a legal separation from your spouse, or are in the process of getting one when you decide to file for divorce, then you will need to file the paperwork with the same court with which you filed your legal separation paperwork. You are not under any obligation to tell your spouse about your intention to file for divorce until you have already filed the paperwork to start the process, at which point you will need o serve them with a copy of the paperwork that you have filed with the court.
Community Property vs. Separate Property
Indiana is an equitable division state, which means that the court may not divide all of the property equally if such a division is determined to be unfair. Even though the presumption is that an equal division of all property is fair, the court may divide the property in an unequal manner if, after considering a number of factors, it determines that such a division is the most fair to all parties. The factors that a court will consider in determining how to equitable divide the property include the contribution each spouse made to the acquisition of property, the economic circumstances of each spouse, and whether the property is marital property or separate property. This means that the court will assume that all of the property you and your spouse have is marital property and subject to division, unless you can prove that it is separate property and, thus, not subject to division. Most property that either spouse acquired during a marriage is considered marital property. Separate property, on the other hand, is property that a spouse:
- Owned before getting married
- Acquired via inheritance or as a gift
What Should I Do If There Are Children Involved?
Any divorce involving minor children will also involve the matters of child custody and child support. The court will determine just how to allocate the custody based on the best interests of the child. In determining what custody arrangement is in the best interest of the child, the court will consider:
- The child’s gender and age
- The parents’ desires
- The preference of the child, particularly if the child is over the age of 14
- The relationships the child may have with other family members and anyone else who plays major role in the child’s life
- How the child will adjust to their new life, including their school, home, and community
- Everyone’s physical and mental health
- Whether the child has been taken care of by someone other than the parents
- If there is evidence of abuse by either parent
If your spouse is granted primary custody of your child, then you may be required to pay child support to help cover the cost of raising your child. The amount that you may be required to pay will be based on the child’s standard of living if the divorce had not happened, your and your spouse’s financial needs and resources, and the child’s educational needs as related to their physical and mental health.
Child custody and support issues can be very complicated and contested during a divorce, but it is best to deal with it as a part of the divorce. If you wait to deal with these matters on a more permanent basis after the divorce is finalized, then you will face the additional expense of hiring a lawyer to represent you and help persuade the court to alter the preexisting arrangement that it had already deemed to be in the best interest of your child, which is a very difficult thing to do and something for which you will almost certainly need legal assistance.
Do I Need to Pay Alimony?
In the event that one spouse is in need of financial support, the court may order the other spouse to pay them alimony, which is known as maintenance under Indiana law. Maintenance is only granted in Indiana if one of the following situations is present:
- If the spouse is physically or mentally incapacitated to the point where the incapacitation materially affects their ability to support themselves
- If the spouse does not have enough financial resources to care for themselves, even taking into account their portion of the marital property, and is caring for a child whose physical or mental incapacitation requires them to forego employment
- If the spouse had to put their employment, education, or training on hold for the sake of taking care of the home and/or children, meaning that they are in need of rehabilitative maintenance while they obtain the necessary training or education for procuring proper employment
It is generally up to the court to determine just how much maintenance is to be paid and for how long it should last. However, Indiana law states that rehabilitative maintenance cannot be ordered for more than three years.
Where Can I Find the Right Divorce Lawyer?
Divorce is typically an emotional, stressful, and complicated experience, and navigating the legal system to ensure you are treated most fairly during a divorce can only add to your stress. Consulting with an Indiana divorce lawyer about the divorce process and your particular situation will relieve at least some of the stress that divorce tends to cause. A lawyer can prove to be incredibly useful when you are going through the divorce process and trying to assert your rights.