Sunday, March 8, 2009

Indiana Alternatives to Divorce: Legal Separation - Pleadings

IC 31-15-3 includes the pleading requirements for a legal separation petition. IC 31-15-3-4 sets out what must be contained in the petition:

A proceeding for legal separation is commenced by the filing of a petition entitled, "In Re the legal separation of _________ and _________". The petition must:
(1) be verified; and
(2) set forth the following:
(A) The residence of each party and the length of residence in the state and county.
(B) The date of the marriage.
(C) The date on which the parties separated.
(D) The names, ages, and addresses of:
(i) any living child less than twenty-one (21) years of age; and
(ii) any incapacitated child;
of the marriage and whether the wife is pregnant.
(E) The grounds for legal separation.
(F) The relief sought.
As added by P.L.1-1997, SEC.7.

It then must be signed by the Petitioner and verified. Verified means either signed in front of a notary or using this language:
"I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true. (Signed) _____________________"
And IC 31-15-3-9 sets out what must be in the Legal Separation Decree.

Now let us look at what might be the weakness of our legal separation statue. Like all family law statutes, the legal separation statute does not require a responsive pleading:
IC 31-15-3-8
Responsive pleading or counter petition
Sec. 8. A responsive pleading or a counter petition may be filed under this chapter.
As added by P.L.1-1997, SEC.7.
Case law tells us that a petition for legal separation can convert to a petition for dissolution of marriage. The following comes from Richey v. Richey, 128 Ind.App. 503 at 505 and 508-09, 149 N.E.2d 126 (1958):
Appellee's complaint averred, in substance, the parties were married on the 24th day of May, 1936 and lived together as husband and wife until the 15th day of February, 1956, on which day they separated and have not since said date lived or cohabited together; that three children were born to said marriage, and she is a fit and proper person to have their custody and desires same. It is then specifically averred that ‘prior to their separation, defendant was guilty of cruel and inhuman treatment of plaintiff, by reason of which it has become impossible for plaintiff and defendant to live together as husband and wife; that plaintiff has been a bona fide resident of the State of Indiana for more than one year last past, and of the County of Ripley for more than six months last past, and for six years last past has resided at 419 North Buckeye Street, Osgood, Ripley County, Indiana; that she is by occupation a housewife.'

Prayer that she be divorced from bed and board from appellant, that she be awarded custody of the children and that appellant be required to pay a reasonable sum at reasonable intervals for the support of herself and children during said separation and for attorney fees, etc.

On May 9, 1956 appellee filed an amended complaint for absolute divorce. The only amendment to this pleading was in the prayer, which asked that the bonds of matrimony heretofore existing between the parties be dissolved, and that she be granted an absolute divorce from appellant. It then asked for custody of the children, support, attorney fees, etc., as did the original complaint. The original and the amended complaint had appended thereto the following affidavit:


However, in this case there is another and more important reason why appellant's contention cannot be sustained. We have heretofore indicated the difference in the phraseology of the statutes relating to separation from bed and board and for absolute divorce. Both the original and the amended complaints, in averring the grounds for separation and the grounds for absolute divorce, assert verbatim the fourth ground of the divorce statute. As hereinbefore set out, the only difference in the two complaints is contained in the prayer. It is well settled in this jurisdiction that the prayer of a complaint does not determine its character or theory. It is the substantial facts that are controlling. Houck v. Graham, 1886, 106 Ind. 195, 202, 6 N.E. 594; Burk v. Brown, 1915, 58 Ind.App. 410, 417, 108 N.E. 252; Loftin v. Johnson, 1940, 216 Ind. 537, 542, 24 N.E.2d 916; Grider v. Titus, 1948, 118 Ind.App. 473, 476, 80 N.E.2d 570 (Transfer denied).
It appears that one can convert a Petition for Legal Separation into a Petition for Dissolution of Marriage by mere pleading. While I have serious doubts that this precise discussion in Richey remains good law even though it remains in place under West's Annotated Indiana Code, it leaves open the possibility of a counter petition (or an amended petition ) that is one for dissolution.

I thin the ability to file a counter-petition for dissolution of marriage is supported by two other of our legal separation statutes.

In IC 31-15-3-9(3), the Decree must state that "neither party has filed a petition or counter petition for dissolution of marriage under IC 31-15-2...." Which says to me that if either party files a petition for dissolution, there can be no legal separation decree. After all IC 31-15-3-5 bars the filing of a legal separation petition if there is a pending divorce case:
A proceeding may not be commenced under section 4 of this chapter if:
(1) an action for dissolution of marriage filed under IC 31-15-2-4 (or IC 31-1-11.5-3(a) before its repeal) is pending; or
(2) a provisional order or decree based on a petition for dissolution of marriage filed under IC 31-15-2-4 (or IC 31-1-11.5-3(a) before its repeal) has been granted.
Therefore, a dissolution of marriage petition trumps a legal separation petition. I think if the opposing party files a counter-petition for dissolution, then the legal separation case ends.

Why do I think the Richey discussion currently describes the current relationship between pleading a legal separation case and a dissolution of marriage case? Because of the following statute:

IC 31-15-2-3
Grounds for decree
Sec. 3. Dissolution of marriage shall be decreed upon a finding by a court of one (1) of the following grounds and no other ground:
(1) Irretrievable breakdown of the marriage.
(2) The conviction of either of the parties, subsequent to the marriage, of a felony.
(3) Impotence, existing at the time of the marriage.
(4) Incurable insanity of either party for a period of at least two (2) years.
As added by P.L.1-1997, SEC.7.
I am going to discuss the grounds for legal separation in another post but I think this suffices to explain my questioning of Richey.

Take a look at Indiana Alternatives to Divorce: Legal Separation; The Grounds for Legal Separation in Indiana where I discuss the grounds for legal separation.

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