Getting a Legal Separation in Indiana
In Indiana, filing for legal separation means that you are looking to remain married but unable to live together with your spouse. For many couples, separation is a first step toward what they hope will be a return to a marriage, but for others these short-term arrangements become a long-term way of life. Unlike divorce, however, separation is not permanent, meaning that a couple might get back together at some point in the future, but a couple who has been legally separated can apply for divorce.
Legal separation is not binding but must occur before filing for divorce in the state of Indiana. A legal separation negotiates all matters involved with being married except divorce itself. All matters regarding child custody and support, parenting time, division of assets, spousal maintenance, and child visitation can be negotiated by verbal agreement, prenuptial and postnuptial agreements, or in writing later on.
There are benefits to a legal separation versus a divorce. For some individuals, it can be extremely helpful to negotiate all matters of marriage while still remaining married. Prudent couples often choose legal separation only when there are minor children involved.
After filing for separation , the couple must live separate and apart for at least one year before filing for a divorce. However, if both parties believe their marriage is irretrievably broken, a spouse may file for divorce immediately after separation. If you have no hopes for salvaging the marriage and know that your marriage is irretrievably broken, it is not necessary to legally separate before filing for divorce.
You might consider a legal separation instead of divorce for any number of reasons. Often times, a legal separation cuts financial ties while allowing you to keep the legal bonds intact. Some couples see separation as a way to work through their problems while maintaining the option to reconcile in the future. For others, separation allows them to renegotiate agreements without the threat of divorce looming over them.
Although twenty states do allow for separation from a spouse without legal divorce and many states require that a couple be legally separated before filing for divorce, in Indiana a couple must be married for 60 days before separating in order to file for legal separation, and those seeking a divorce must be legally separated at least 60 days.
Qualifying for a Legal Separation
To file for legal separation in Indiana, you must meet certain eligibility criteria. First and foremost, you must be a resident of the state and have been living there for at least six months before filing for legal separation. In some instances, you will be able to file for legal separation in Indiana even if you have only lived in the state for a short time. However, you must show the judge that you or your spouse are permanent residents of the state for some other reason, such as having family and friends there or having relocated to Indiana because you have a job there. In addition to meeting the state residence requirement, you must meet county residency requirements. For example, if you want to file for legal separation in Indiana in Tippecanoe County, you must reside there for at least three months before filing for legal separation. You must also reside in Indiana for at least six months prior to the legal separation filing. However, if you and your spouse have an Indiana vehicle and an Indiana driver’s license, you may meet residency requirements with documentation showing that you and your spouse own property in the county in which you want to file for legal separation, such as a home or a business. Any marriage that has lasted at least one year is eligible for legal separation. You can request a legal separation whether or not you currently have children and whether or not your children are minors. If your children are minors, you may be required to attend parenting classes to help ensure you and your spouse know how to effectively co-parent after a divorce.
Legal Separation Paperwork Preparation
Once you’ve decided to file for legal separation in Indiana, there are several crucial documents you’ll need to gather before taking your case to court. Below are the documents essential for filing legal separation in Indiana.
Petition for Legal Separation
The first document you’ll need is a Petition for Legal Separation. In this document, you must list the facts and circumstances that are causing you to seek a legal separation from your spouse. These should be concise, easy to understand, and conveyed in a way that will be understood by the judge or your spouse. Finally, the Petition for Legal Separation should spell out the exact relief you’re seeking from, and what you’re asking of, the court.
Financial Affidavit
Because you are legally separating from your spouse, you must also file a Property and Financial Disclosure with the court. This document gives the court information about your current financial situation. Some examples of the kind of information on a Property and Financial Disclosure include:
· Your income and salary information
· Your employment history, including company names and locations
· List of assets in your name, such as a house, car, stocks, and bonds
· List of assets in your spouse’s name
You may also want to attach copies of supporting documents, like pay stubs, bank statements, and tax forms. A Financial Affidavit is typically filed in conjunction with a Property and Financial Disclosure. The documents are similar, but the Financial Affidavit is signed by you under oath or affirmation. This makes a Financial Affidavit a sworn statement about your financial situation, which makes it more official than a Property and Financial Disclosure. When filing multiple documents, always make copies and keep the originals for yourself.
Remember, gatherings these documents and filing your legal separation request can be complicated and time-consuming, so give yourself plenty of time before the date you plan to file.
Petition for Legal Separation at Court
The process for filing a legal separation in Indiana is relatively straightforward. Once you’ve determined that a legal separation is in fact the path for you (and not a Decree of Dissolution of Marriage), the procedure is as follows:
- Complete the Packet. The packet for filing a petition for legal separation consists of two forms: the Petition and the Case Information Sheet. In Indiana, there are no forms for legal separation, but the Petition for Dissolution of Marriage can serve for a legal separation.
- File the Petition. The Petition should be filed in the county in which you have lived for the last three months. If you were married in a state other than Indiana, though, you may file for legal separation (or dissolution) in Indiana if you or your spouse live in the county for the next three months. This is the county that has jurisdiction over your case. You will need to file the original Petition and two copies — the clerk’s office retains an original at the courthouse and sends one copy to the other party.
- Pay the Filing Fee. Indiana requires that you pay a filing fee to process the Petition. The fee varies by county, but you can expect to pay somewhere between $170 and $200. Do not mail this fee in. You must be present in the county court to submit your case, and the clerk on duty will accept payment in person.
- Have the Petition Served. Service ensures that the other party is aware of the pending legal action and may not deny that it occurred. Once the Petition has been filed with the appropriate county court, it must be served upon the other party. Often, the court clerk will assist with this, but it isn’t required. You can also have a friend or relative serve the forms, provided they’re over the age of 18 and not involved in the case. You or your representative can serve the forms any time before the hearing at which you seek the legal separation decree.
Servicing Your Spouse
After Filing the necessary separation papers, you must serve them on your spouse. In Indiana, service can be conducted by a sheriff or constable in your county. An Indiana process server is not required in Indiana. In addition to a sheriff or constable serving these papers on your spouse , you may also have a friend or certified process server serve these papers by completing a form and having your friend or process server sign an affidavit of service. Your attorney will know what rules apply for the service of your papers in your county. If your spouse has not been served with the separation papers after 30 days, the procedures may get complicated. If your spouse does not respond to the separation papers with a Joint Petition for Legal Separation after 60 days, you can request a hearing to divorce your spouse in absentia and get most of the same relief above.
Heeding to Court Hearing
Once the legal separation is filed, there are typically several weeks before a court hearing is scheduled. In Indiana, one of the attorneys who filed the legal separation (or a third-party attorney) will schedule the hearing with the court. This means that in general, at least one attorney must be retained by one or both parties prior to the hearing.
What Happens to Obtain the Separation? The hearing is generally very short and takes about ten to fifteen minutes. The court will require the following items during the hearing:
- (1) The petition for legal separation;
- (2) The separation agreement (if any);
- (3) The marital settlement agreement (if any);
- (4) A proposed order of legal separation; and
- (5) The filing fee.
How to Prepare for the Hearing: To prepare for the hearing, you will need to be familiar with all of the above items. You will also need to be familiar with the basic "facts" of living together with your spouse. For instance, the dates of when you were living at the same address, when your spouse moved, when you moved, what type of work you do, whether health insurance is needed after the separation, and any other logistics that are relevant. If children are involved, you will also need to now the general time share of each parent with any children.
After the hearing, the judge will almost always approve the legal separation. At that point, the matter will be pending for a six-month period. The legal standard for divorce differs somewhat from the standard for legal separation. A legal separation is a way to begin the procedure of divorce, but in general it has less requirements to meet.
Implementing the Preferred Next Steps
After the court makes a decision on legal separation, the post-hearing steps are fairly straightforward. The Indiana court will either grant the legal separation or deny the request. If granted, the court will serve the parties with a decree outlining the obligations of both spouses. While the decree will have a start date for when the obligations should begin, there may not be any specific date for when the decree is to be completed or complied with.
The obligations of the parties include: child support, any maintenance owed, asset division, debt allocation, and issues regarding support of other people or entities. In some cases, the court will grant the legal separation but reserve on making a decision about the other issues. If such an action occurs, the date for compliance would be the date ordered by the court.
The issue of child support is generally very straightforward. The parent who has the majority of the parenting time is typically the one who will receive child support. That amount is determined based on the Indiana Child Support Guidelines.
Upon a final decision from the court, the spouse who must pay maintenance to the other needs to pay that maintenance amount at the specified time in the court order. If the person ordered to pay the maintenance does not comply with paying it, the other party can file a motion for contempt asking the court to find the paying spouse in contempt and to force him or her to pay the full past due amount. After a hearing on such a motion, the court can order a judgment for the past due amount and can sometimes order jail time for the spouse who has failed to make the maintenance payments.
In most cases, the court will address the issue of child support and maintenance in one hearing. The date for when those amounts need to begin and the amount of the payments should be included in the decree if the court has a final decision. If those amounts are set out in the decree, the spouse who must pay the funds to the other person needs to ensure that those amounts are paid in full and at the proper time. Failure to do so can result in contempt of court and sanctions against the paying spouse.
Remember that, in Indiana, there is a presumption of joint 50/50 parenting time with a 50/50 split of the child care costs for the two parents. If the two parents live apart, the court may require both parents to contribute to the cost of daycare, medical and dental insurance, health care and tuition for the child’s education. The court will also order either party to pay the other for unreimbursed expenses for the children.
Emotional and Legal Support
When going through a legal separation, it can feel overwhelming and confusing. You may not know where to turn for advice or support through this emotional process. There are many resources available, both legal and emotional, to help you through your Indiana legal separation.
To start, it is best to have a knowledgeable professional or firm on your team to help you navigate this complex process. Your family law attorney has extensive experience and training in legal separations and can help you understand your options moving forward and what the potential legal consequences of each option may be. When meeting with a legal professional, bring all of the documentation can provide insight into your marriage, such as tax returns, property deeds, bank, and investment account statements, and retirement account information. This information will be used by your attorney to understand your financial situation and identify ways to protect your assets moving forward.
The court may also keep the details of your legal separation private. At a typical hearing , only the judge and the parties are permitted to be in the room, which provides a good deal of privacy. In addition, a legal separation allows spouses to retain particular assets that they may otherwise lose in a divorce and protects one spouse from the other party’s possible debts. It can be a way to "test the waters" and see if a divorce is really the right option.
There are also emotional resources to turn to, such as counselors, support groups, and friends. Your family law attorney may be able to suggest reputable counseling services, and many community organizations offer support groups for people going through a separation or divorce. This is usually an incredibly trying time in your life, and being surrounded by supportive friends and family can make a tremendous difference in your emotional well-being.