How Does Legal Separation Work in Indiana?
In Indiana, a legal separation is a decree of the court that provides for a property settlement and the terms on which the couple will live apart until a final divorce is granted. Under Indiana law, a legal separation does not result in legal status. You are still considered married and, therefore, not single. The decree of legal separation does not end a marriage or terminate the marital estate rights of either party. Although a divorce and a legal separation use the same forms and similar rules apply, the two concepts are very different in many respects. A legal separation is a matter of contract between the parties, as it is intended to address rights and obligations between them during an interim period. A divorce is a judicial proceeding, and the court will decide dissipation of marital funds and property division if an agreement between the spouses cannot be reached . In a divorce, unlike a separation, a party can pursue one of the spouses for spousal funds.
The options available to a married couple in a legal separation include: As a practical matter, the difference between a legal separation and a divorce is often negligible. After all, both options will lead ultimately to a divorce. If a couple is prepared to remain apart and want to obtain an immediate property settlement and establish terms for their children, a legal separation may be right for them. However, if the couple does not have significant money or other assets, and the needs of children could be better addressed by ordering more support, the final outcome might be the same. In almost all circumstances, a divorce action is less costly and painful to a family than a lengthy separation.
The Pros and Cons of Legal Separation
While legal separation is not a mandatory step you must take before you can file for divorce, it does offer a number of potential benefits to couples. Because this process is an alternative to divorce, many people who wish to separate find it a desirable option. Some people even claim that legal separation is a "trial run" of living apart before pursuing a divorce. For others, legal separation is a beneficial step that may negate the need for divorce altogether.
One of the main reasons people pursue legal separation rather than divorce is financial. Many people claim they can save thousands of dollars by pursuing this legal route before deciding to divorce. While certain situations will certainly end in a divorce, others will lead to the couple getting back together. In these instances, the process offers a legal framework consistent with the couple’s best interests and needs.
Another nice benefit of legal separation is that it legally allows the couple to take some time apart, even if they have children together. During this time, decisions can be made regarding schooling, health care and other issues before the couple ultimately decides which path to pursue.
Legal separation also provides protection for domestic violence victims, as well as those who worry that their spouses might hide or move assets once they file for a divorce. For moms, legal separation may provide some breathing room before making child-related decisions. In addition, it can provide time to plan and organize for divorce in a way that preserves the family finances and important assets.
Of course, a legal separation isn’t right for everyone. Many people note that the gradual process of separation is difficult to bear, as is the inconsistent financial situation. At the time, couples may hope for an easy transition, but in many cases, the couple is separated merely for a few months before filing for divorce. For other people, the separation period lasts for years.
Couples who chose legal separation to save on divorce fees often find themselves paying more to attorneys than if they had filed for divorce from the beginning. They may also face problems dividing up property if they sold or transferred it during the legal separation. Finally, if couples have extensive property and assets or debts, additional costs to untangle them may occur. The best way to determine whether legal separation is right for you is to consult with an Indiana family law attorney.
The Separation Process in Indiana
The legal process for obtaining a separation in Indiana involves several steps that are similar to the steps involved in filing for divorce.
One distinction, however, is the fact that it is not necessary for parties seeking a legal separation to have lived in separate residences. Many separating spouses remain under one roof while the legal separation is pending, especially when children are involved.
While no one actually likes to involve lawyers in their family matters, the assistance of a lawyer is an invaluable tool in the division of property, determination of spousal support, and child custody issues that arise during separation.
The first step in the process is the filing with the court of a Petition for Legal Separation. The Petition must allege that the marriage is irretrievably broken and that the reason for the separation includes a desire to make a legal division of property, determine the amount of child support and spousal support, and make a determination of custody and parenting time with any minor children of the marriage in such a way as to avoid a final termination of the marriage. It is not necessary to provide specific details of the parties’ reasons for separating in the Petition.
In addition to the Petition for Legal Separation, a Party seeking the stay of a divorce should file with the court the following documents:
Once the papers are filed, the court assigns a case number and the case is scheduled for a hearing date. Six months is the average length of time to obtain a legal separation in Indiana with parties mostly agreeing to all terms. If the hearing involves contested issues, it can last several more months.
The parties meet the six-month deadline provided for by statute once the Petition is granted, thus the parties are legally separated.
How Separation Affects Property and Debts
A legal separation does not affect the allocation of property between the parties. Property acquired by either party before or during the marriage remains marital property. The parties are entitled to the return of their separate property at the time of separation. After separation, debts or assets acquired are usually considered the separate property of the party who incurred the debt or acquired the asset. However, Indiana law provides that the court may authorize either party to encumber, alienate, or assign property in favor of the other party during the legal separation. A separation agreement, as described below, is most commonly used to set terms for how property will be divided in a legal separation. Under Indiana law, a court may issue a decree of legal separation upon petition of either spouse. The court may incorporate the separation agreement of the parties into the decree without being bound to the terms of the agreement.
How Separation Affects Your Children
A legal separation agreement can have a huge impact on child custody and support in Indiana. All issues related to a couple’s children will be affected by the Court’s decision on legal separation. The court will have to decide where the children will live, how much time each parent will spend with the children, and how much support will be paid. Spousal maintenance issues also affect the outcome.
The Court will consider any marital property and division thereof in relation to these issues. The majority of the time, the property issues are separated from the custody and support issues. The parties usually come to a resolution on the property issues before the custody and support issues are discussed. At times, it is not practical to divide the marital estate until a later date due to the custody and support issues. In this situation, the Court may reserve the issues until a later date or set the issue for a hearing immediately.
Many factors go into a court’s decision on custody. A few of those are:
With these factors in mind , the Court will look at the situations in which the children live. The Court will consider the residential parents’ home situation and the nonresidential parents’ home situation. The Court will research school districts. The Court will consider work schedules and travel time. The Court will look at each parent’s interaction with the children. The Court will have an opportunity to speak with the children. Custody is typically awarded to the parent that can provide the best educational enrichment for the children. That does not always mean the most expensive schools. The children will need time with each parent so it is crucial that both parents live as close to each other as possible. The Court will want to see evidence that each parent can take the kids to school and pick them up afterwords. The Court will want information on daycare if applicable.
Support is usually dictated by several circumstances. The court will look at each party’s income. Child support is based upon the Guidelines. The Court will consider additional costs such as daycare, extracurricular activities, and uninsured medical expenses. If a parent is not working, daycare costs may not apply. If a parent has college plans for the children, support may be extended past age 21. At times, the issue of college is reserved until a later date.
The information above is a very brief summary of the factors affecting custody and support. Obviously, no two cases are the same.
Turning Your Separation into a Divorce
In Indiana, six months after a separation, an individual can file for divorce. However, this is the earliest point at which a separation can be converted into a divorce. Indiana law requires individuals to wait six months before filing for divorce under the grounds of irreconcilable differences. On the other hand, the spouses can convert their legal separation into a divorce at any time before the legal separation is finalized. This means that an individual can only convert a legal separation into a divorce by petitioning the court. The process by which you request a conversion is otherwise the same as the process for filing for dissolution of marriage.
Getting Help with Separation in Indiana
While separations do not require legal counsel in Indiana, it’s typically a good idea to obtain legal assistance when forming a separation agreement to ensure that it complies with the law. Working directly with an attorney can help you avoid legal pitfalls and potential problems in the future. When searching for a competent family lawyer, consider the following tips: Be picky. Legal representation is an important factor for a separation agreement. Don’t just hire the first lawyer you come across; instead, take your time and find someone who will represent your best interest. Consider the type of case. You may find it helpful to work with a divorce attorney rather than a family law attorney, depending on the nature of your case . If your separation will lead to the dissolution of the marriage, a divorce attorney may offer more comprehensive knowledge for your case. Meet with the attorney personally. Get to know your lawyer by meeting for a face-to-face consultation before hiring. You could also ask your lawyer if you could negotiate your agreement directly with your spouse to save on attorney fees. The Indiana Supreme Court provides a "Lawyer Finder" service that helps match you with a local attorney. The American Bar Association and Indiana State Bar Associations also have Lawyer Referral Services if you’re having difficulty finding a legal professional to assist you with your separation.