Are you considering filing for a divorce (dissolution) in Indiana? We know that the decision to leave a marriage is never an easy one. It requires a lot of thoughtful contemplation, self-reflection, deliberation, some major soul searching, and a bit of planning. If you find yourself contemplating a divorce in Indiana, this is what you need to know.
Dissolution of Marriage
In Indiana, divorce is actually referred to as “dissolution of marriage.” The term means the same thing and signals the end of a marriage from a legal standpoint. It is a process that is accomplished by a legal filing through the court system. It begins with the filing of a legal document called a “Verified Petition for Dissolution.” Having an experienced family law attorney to represent you through the process is highly recommended.
Indiana is a “no fault” state. This means that a specific reason for a divorce doesn’t need to be listed. However, the Petition for Dissolution (court paperwork) does require the person filing the petition to list a general reason, but it can be vague and basic. Many people choose to list an “irretrievable breakdown of the marriage” as the reason for seeking a dissolution—basically, that some issues arose that led to the deterioration of the marriage. This could obviously cover a wide variety of issues. The bottom line is that if one side wants a divorce, a divorce will be granted.
Division of Property, Debts and Assets
Indiana law, by default, requires an equitable division of all property, debts, and assets between the two parties; and that equitable division is presumptively a 50/50 split of the marital property.
However, the parties may also agree upon how they would like to divide their property, debts, and assets. A divorce settlement can take any form because it is reflective of what the parties can agree. If the parties are unable to reach a settlement agreement and the case goes to trial (generally called final hearing in divorce cases), a judge will hear arguments presented by both attorneys/parties and then issue a ruling. The Court has great discretion and the Court’s ruling may or may not follow the 50/50 presumption.
For this reason, the attorney you choose to represent you matters greatly. This decision can make a major difference in the outcome. As Abraham Lincoln once said, “A man who is his own lawyer has a fool for a client.” And a fool is definitely something that you don’t want to be when engaged in a dissolution proceeding.
You need someone in your corner — someone who is fighting for you — who is familiar with the court system, knows the trial rules and civil procedure, and who will take the time to craft and present the best legal arguments for you. Even if you and your spouse (soon to be former spouse) get along fairly well at the moment and are able to communicate with one another, having an experienced attorney to represent you will ensure that everything goes smoothly and that your best interests are protected.
If you and your soon-to-be-ex have reached the “scorched earth” phase of the relationship then you should definitely hire an attorney. Either way, you will want to walk away from your marriage knowing that your best interests were served and that the matter was handled appropriately, so you can move forward in your life! You are entitled to certain results under the law. Make sure you get them.
Best Interest of the Child Standard
In Indiana, the court determines custody based upon what is in the best interest of a child. The applicable code states:
The court shall determine custody in accordance with the best interests of the child. In determining the child’s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
(Indiana Code Title 31. Family Law and Juvenile Law § 31-14-13-2)
60 Day Waiting Period
There is a 60 waiting period in Indiana from the date that a Petition for Dissolution is filed, even if the two parties have reached a mutual settlement agreement. There will be no action taken by the Court for at least 60 days after the non-filing party is served with the initial Petition. (The waiting period exists for a reason. People do sometimes change their minds, although not often.
The 60 days is often referred to as a “cooling off” period.) It bears mentioning that a dissolution hearing is also at the mercy of dealing with the opposing party and the court’s calendar. If the courts are behind in handling incoming filings/cases—for example, due to a pandemic, such as Covid-19—it can, and likely will take longer. Attorneys have no control over the court’s availability for hearings and calendaring efforts.
Non-contested matters – When parties are able to reach a settlement agreement
Non-contested divorces are resolved more quickly than contested divorces. You still will be at the mercy of the court’s calendar, any changes in representation (lawyer) by the other party, or any continuances requested by the other party, as well as any major scheduling conflicts that may arise for your attorney. Non-contested divorces can be resolved without the need to have a hearing or make an appearance in court.
However, oftentimes a matter starts out seemingly non-contested, but early on the parties experience a deterioration in their ability to negotiate in good faith or reach mutual terms for settlement. For this reason, a matter can go from being non-contested to contested overnight and then require one or more court hearings. You should hope for the best, but be prepared for the worst when it comes to dealing with your soon to be ex-spouse.
Contested matters – When the parties cannot agree to settle
In contested matters, where the parties cannot agree to terms, the proceeding may last 6 months to 2+ years. The other party (your soon-to-be-ex-spouse) may fire their attorney, hire a new attorney—sometimes multiple times—or seek to continue scheduled hearings, which pushes things back. This can extend the timing for reaching a resolution, a final hearing, and/or a final order decree.
While we can’t control what the opposing attorney does, we will do our best to keep scheduled court dates unless a conflict arises that requires us to continue a hearing. We always try to avoid unnecessarily delaying your dissolution, but we are not in control of all of the factors that may affect the timing. We will do our best to keep your dissolution on track and work to get it resolved as quickly as possible, while protecting your interests and asserting your legal rights.
There is typically a provisional hearing held to address issues such as temporary orders for custody and support, the freezing of assets (temporary restraining order on assets), who will maintain the marital residence, health insurance, issues of spousal maintenance, and any other necessary issues that must be addressed by the court. People often wonder what will happen to their continued income and assets after filing for divorce: the martial pot freezes on the date of filing for dissolution – anything a party makes after that date of filing is now considered separate, and does not need to be addressed at a preliminary hearing to make that happen.
A final hearing, if needed, is when the court hears testimony and receives documentary evidence, after which it enters final a final decree and the divorce proceeding is formally concluded. At that point, you are lawfully divorced and restored to the status of a single person.
If your dissolution is filed in Marion County (and the same is true in many other counties) you will be required to attend mediation prior to a final hearing. Mediation is often required by local rules.
The reason for mandating mediation is that statistics show that 80% to 90% of cases settle at mediation. This frees up precious court time to be used for the most difficult and contentious cases.
Helpful Child Support Resources
Indiana Legal Help (Free information and resources)
Child Support – Orders Issued From Other States
All U.S. states have enacted the Uniform Interstate Family Support Act (UIFSA) in order to receive federal funding for their child support programs. UIFSA is built on a “one order, one time, one place” construct. This means that a U.S. court may not enter a current support order where a valid one already exists. The support order that governs prospective current support is known as the “controlling order.” So long as an individual party or the child resides in the “issuing state” (the state of the court which issued the controlling order), that court retains exclusive jurisdiction to modify its order, upon proper petition.
Generally, the issuing court no longer has controlling exclusive jurisdiction and loses the authority to prospectively modify [change] its current child support order when the parties and the child have left the issuing state. There are two exceptions: (1) no one resides in the issuing state but both of the individual parties consent in the record for the tribunal to retain controlling exclusive jurisdiction; or (2) at least one party remains in the state but the parties agree in writing to vest jurisdiction in another state.
(42 U.S.C. §666(f)).
The detailed facts of your case are unique. For this reason, you should discuss your specific situation with an experienced family law attorney, so that you can protect your interests and ensure that your legal rights are asserted. We have experienced attorneys who can help to guide you through the process.
Learn more about child custody and child support.
The facts and details of your situation will affect many aspects of your dissolution, the way it is handled, the length of time it takes to resolve it, and the ultimate outcome that is reached. While we wish we could offer more specific tips and helpful advice regarding dissolutions, we simply aren’t able to do so.
Every dissolution is different. Every set of facts is different. Every case is different. The details do make a difference. The way we would handle one client’s case may be vastly different from how we would choose to approach your case, based on your situation. Give us a call. We’d be happy to talk through the details of your situation to get you the answers and legal guidance you need.
Call us at (317) 269-3500. You can schedule a consultation with one of our attorneys, where you can attend a Zoom meeting or telephone consultation from the convenience of your own home. One of our experienced attorneys would welcome the opportunity to talk with you today.
“Only lawyers and painters can turn white to black.”
“True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures. . . . There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men
in a peaceful state.”
~John W. Davis
“People do not win people fights. Lawyers do.”
~Norman Ralph Augustine