The laws of Indiana governing divorce, separation, alimony, child support, child custody, and child visitation are generally contained in the Indiana Code at Title 31, available link.
To fully understand Indiana divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is also important to know if law is up to date. For these and other reasons, it is always best to consult with a qualified family law attorney to know how the law applies to your particular situation. The following legal summaries are not intended as legal advice and should not be relied on as such. They are intended only as an introduction to the way that the law functions in these areas.
Legal Separation and Divorce in Indiana
The term “separation” may refer to either an informal separation or a “legal separation.” In Indiana, neither an informal separation nor a legal separation is necessary if spouses are planning on divorcing.
An informal separation (sometimes referred to as a “trial separation”) is simply where spouses no longer live together, but have not filed in court for a separation or divorce and have not executed a legally-binding formal agreement concerning the rights and responsibilities of each spouse regarding the separation.
“Separation” may also refer to a “legal separation.” A legal separation may occur by court order (after the filing of a petition for legal separation in a court of law). In order for a court to award a decree for legal separation, it is required that (a) the spouse have become intolerable towards each other and can no longer live together, (b) the spouses do not wish to terminate the marriage, (c) neither spouse has filed a petition or counter petition for dissolution of marriage or divorce. In type of legal separation, a court will generally decide the same issues as it would in a divorce, including issues related to spousal support, property division, child custody, and child support. A decree of separation is similar to a decree of divorce, except that the bonds of matrimony are not broken with a separation. And, of course, spouses who are merely separated may not remarry. One situation where a legal separation would be sought might be where a couple wishes to avoid a divorce for religious reasons, but otherwise desires that which comes with a divorce (living separately, property division, etc.).
Initial considerations for Divorce in Indiana
TUnder Indiana law, a divorce is generally referred to as a “dissolution of marriage.” A divorce case in Indiana is generally commenced by submitting to the proper court a document entitled “Petition for Dissolution of Marriage.” The spouse involved must be identified as the “Petitioner” and “Respondent.” Once the petition is filed, a copy of it and a copy of the summons must be served to the other spouse in the same manner as done in other civil matters.
Residency Requirements for Divorce in Indiana
In order to file for a divorce in the State of Indiana, one of the spouses must meet certain residency requirements (see the Indiana Code at Title 31, Art. 15, Ch. 2). For a period of at least six months immediately preceding filing for divorce, at least one of the spouses must be: (a) an Indiana resident, or (b) stationed at a United States military installation within Indiana.
In addition to fulfilling residency requirements to file for divorce in the State of Indiana, couples must also fulfill residency requirements to file for divorce in any particular county in Indiana (see the Indiana Code at Title 31, Art. 15, Ch. 2). For a period of at least three months immediately preceding filing for divorce, at least one of the spouses must be: (a) an Indiana resident, or (b) stationed at a United States military installation within the county.
It is also worth noting that if a couple filed for a separation in an Indiana court before filing for a divorce, Indiana law requires that the divorce be filed in the court in which the legal separation is pending or the court in which a provision order or decree for legal separation is in effect.
Grounds for Divorce
“Grounds for divorce” are the legal reasons for a divorce. Indiana recognizes both fault and no fault grounds for divorce.
A “no fault” divorce is simply a divorce for which it is not necessary to prove that there was any fault or wrongdoing by either spouse. In Indiana, the no fault ground for divorce can be used when there is an irretrievable breakdown of the marriage.
Indiana also has fault ground for divorce. Situations where a divorce may be filed under fault grounds include:
- • When either of the parties have been convicted of a felony, after marriage
- • Impotency existing at the time of the marriage
- • Incurable insanity found in either of the parties, for a period of two years
Division of Property
In Indiana, courts generally encourage spouses to come to an agreement themselves regarding property division (often in the form of a “Marital Settlement Agreement”). If spouses cannot agree, the court will divide the property according to Indiana law.
Indiana is referred to an “equitable distribution state.” This means that Indiana courts will go through the following process in dividing property between the spouses: First, the court will consider the property and debts of each of the spouses and whether specific property and debt should be considered marital property or nonmarital property. Second, the court will assign a value to the marital property and debt. Finally, the court will distribute the marital property (and debt) equitably.
It’s important to know what it means to divide property “equitably.” It does not necessarily mean equal or 50/50. Its meaning is closer to “just” and “reasonable.” This said, Indiana courts do start with a presumption that dividing property and debts equally is just and reasonable. This presumption may be rebutted by either spouse if that spouse is able to present evidence related to the following factors that shows that an equal division of the assets would not be fair or reasonable (see the Indiana Code at Title 31, Art. 15, Ch. 2):
- (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.
- (A) a final division of property; and
- (B) a final determination of the property rights of the parties.
Alimony in Indiana
Alimony (referred to as maintenance in Indiana) is the court-ordered financial support of one spouse by the other spouse as a part of a legal separation or a divorce. The laws of Indiana governing maintenance are generally contained in the Indiana Code at Title 31, Article 15, Ch. 7.
Courts may award maintenance in the following situations.
First, a court may award maintenance for a spouse during a period of mental or physical incapacity. In order to do so, a court must find a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected.
Second, a court may award maintenance in an amount and for a period of time that it considers appropriate if the court finds that:
- (A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse's needs; and
- (B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment;
Third, a court may award what is called “rehabilitative maintenance” in an amount that it considers appropriate and for a period of time not to exceed three years from the court’s final decree, after the court considers:
- (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.
Modifying Maintenance Orders in Indiana
A court generally may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if that spouse shows changed circumstances so substantial and continuing as to make the terms of the maintenance unreasonable.
Alternatively, a court may modify the amount of alimony if a spouse shows that:
- (A) he or she has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
- (B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.
Tax Consequences of Alimony
It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.
However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:
- (1) The payment is be a cash payment (such as a check or money order)
- (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
- (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
- (4) The payer and payee are not members of the same household at the time payments are made
- (5) There is no liability to make payments after the death of the recipient spouse
Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. Therefore, it is best to consult with an attorney or qualified tax professional.