Indiana law does not require a couple to live separately for any amount of time before filing for divorce. In fact, divorcing couples can remain living in the same home through-out and after a divorce. However, there are legal reasons why you may want to file for a divorce immediately after separation and maintain separate households during the divorce. This blog explores some of those reasons.
When a party files a legal separation with the court in Indiana, they have one year to either reconcile or convert the separation to a dissolution, as a divorce is called in Indiana. If no legal separation has been filed with the court, the amount of time a party waits after physical separation to file for a divorce can have various legal consequences, which are dependent upon the parties’ circumstances. Property division, child custody and support, parenting time, and spousal maintenance issues may require filing for divorce sooner, rather than later.
Parties who separate without dividing the marital property to the satisfaction of them both, may have continuing disputes which require court intervention, and therefore filing for divorce. There are two statutes governing the division of property in a divorce. The first defines marital property as all property owned by either party whether acquired before or during the marriage. The second, provides for an equal division of the property unless a party can rebut the presumption with relevant evidence regarding one of the following factors: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing. (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift. (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children. (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property. (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties.
Another reason one may need to file for divorce soon after separation is child custody and parenting time issues that cannot be resolved without court intervention. The statute governing child custody provides that the court shall determine custody based on the best interests of the child and that there will be no presumption in favor of either party. When determining the best interests of the child, the court considers factors such as the age and sex of the child, the child’s adjustment to his or her home, school, and community, the physical and mental health of the parties, and the wishes of the child and parents.. Even if the parties agree on custody and parenting time matters, the lack of a written agreement signed by the court, can lead to issues if one or both of them fail to abide by the arrangement.
Child support may also be a reason that a party needs to file for divorce immediately after separation. When a custodial parent is not receiving child support they may need to file for divorce in order to have a child support order issued. The court will order child support based on the Indiana Child Support Rules and Guidelines. These Guidelines provide the rules for determining the values to be used on the Child Support Obligation Worksheet which calculates the amount of a non-custodial parent’s child support obligation based on a mathematical equation.
Finally, after separating, you may want to file for divorce if you need and might be entitled to maintenance. Spousal maintenance may be awarded in Indiana if a spouse (1) is physically or mentally incapacitated to the point that they are unable to support themselves, (2) lacks sufficient property to care for themselves and is the custodian of a child whose physical or mental incapacity requires them to forgo employment, or (3) the court finds that the spouse requires rehabilitative maintenance after considering: “(A) the educational level of each spouse at the time of marriage and at the time the action is commenced; (B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; (C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and (D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment.”
If you are separated, the experienced attorneys at Ciyou & Associates, P.C. can help you determine when the right time to file for divorce might be. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.