The movies, songs, greeting cards, and advertisements this time of year promote marital and relationship harmony, but as a new year has begun and Valentine’s Day approaches, many relationships deteriorate and the divorce rate can rise.
Divorce in Indiana is no exception. Are you pondering a change? Divorce is typically a difficult decision and there are many who are misinformed on this sometimes daunting process. Here are some basics.
Divorce in Indiana 101
Couples considering a divorce in Indiana often have basic questions about the process, which can be emotionally draining. The information in this information applies to most couples, but remember that each situation is unique. Consultation with an experienced attorney is the best way to get specific answers that apply to your family.
Divorce in Indiana: Where Do I File?
The proper venue or location to file a petition for dissolution is the county where you have established residency or your spouse has established residency. Indiana Code § 31-15-2-6 defines residency in Indiana for purposes of filing a divorce to mean living in the county for at least three (3) months in the county and in the state for at least six (6) months prior to filing. If you and your spouse have been separated for a while, more than one county may be an appropriate venue.
When Is a Divorce Final in Indiana?
A divorce in Indiana cannot be finalized fewer than sixty (60) days from the date the petition for dissolution was filed, but the parties may begin negotiating an agreement immediately upon the filing of the petition. If the parties reach an agreement, they may file the document memorializing it any time after the 60-day period has run. If the court approves the agreement and corresponding documents, it may enter a decree of dissolution.
Many times, the negotiations may take longer than 60 days or parties do not agree on some or all issues, causing the pending divorce to be extended. Human behavior, the time to gather information, and the court’s calendar can impact the length of time required for a divorce to be final.
Is My Spouse Entitled to Half of my Assets?
The answer is usually yes. There is only no fault divorce in Indiana. As a result, Indiana Code § 31-15-7-5 presumes that a 50/50 split of the marital estate is just and reasonable. The marital property includes all assets and debts of the parties, regardless of when or how acquired and regardless of how they are titled. However, this causes a common misunderstanding: even if you own an asset in your sole name, it is still subject to division with your spouse in divorce in Indiana.
Although the law presumes an equal division of the marital estate is appropriate, the court may consider certain factors in determining whether to grant one spouse’s request not to apply presumption of an equal division:
- How much each spouse contributed to acquiring the property, even if the contribution was not in the form of income;
- The extent to which the parties acquired the property before the marriage or inherited it;
- The economic circumstances of each spouse when the marital property will be distributed, 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;
- The conduct of the parties relating to the disposition or dissipation of the property, such as by the purchase of extraordinary gifts for a third party or the destruction of property;
- The earnings or earning ability of each of spouse when considered along with the final division of property and final determination of each spouse’s property rights. In other words, if one spouse has a higher earning capacity than the other, the court may give a greater percentage to the spouse with the lower earning capacity, and the ability to pay debts may also be considered.
A court finding the existence of any of these factors may use that fact to support an unequal distribution of the marital estate.
Dealing with Paternity in a Divorce
Custody of the parties’ children is often a contested issue in divorce and in paternity cases and can cause much disharmony.
To the extent paternity is an issue in a divorce, a party should NOT sign a paternity affidavit unless he or she is 100 percent sure of the child’s paternity. The only way to be 100 percent sure is by obtaining a DNA test. While it may cause a difficult discussion, it may also save tremendous heartache in the future and will give peace of mind in the present.
Is a Mother Preferred for Child Custody in Indiana Divorces?
Indiana does not have a presumption that one parent is the preferred over the other with regard to a child custody order. The court determines what is in the best interest of the child(ren). In making that determination, the court considers these factors:
- The age and sex of the child;
- The custody arrangement requested by the child’s parents;
- The custody arrangement requested by the child with more weight given to the wishes of a child is at least fourteen (14) years of age;
- Each child’s interaction and interrelationship with his or her parents, siblings, and any other person who may significantly affect the child’s best interests, such as a stepparent or extended family member;
- Each child’s adjustment to his or her home, school, and community;
- The mental and physical health of all persons involved;
- Evidence of a pattern of domestic of family violence by either parent; and
- Evidence that a child has been cared for by a de facto custodian.
Can a Court Order Alimony in Indiana?
Indiana does not have alimony, but a spouse may be entitled to maintenance. Maintenance generally is in the form of spousal support paid weekly or monthly. A court may order one spouse to pay the other maintenance for living expenses if the court finds any of the following situations to exist:
- The receiving spouse suffers from physical or mental incapacitation to an extent that materially affects the ability to support him- or herself. The court may award maintenance during the period of incapacity but may later modify that order.
- The receiving spouse does not have sufficient property, including marital property, to provide for his or her needs and has custody of a child whose physical or mental incapacity prevents the spouse from employment.
The court may order maintenance for a period of time the court considers appropriate.
The court may also order one spouse to pay rehabilitative maintenance for no longer than three (3) years from the date of the final decree. Before making such an award, the court must consider the following factors:
- The education level of each spouse at the time of marriage and at the time the divorce is commenced;
- Whether the education, training, or employment of the spouse seeking maintenance occurred during the marriage in order to care for the home and/or for childcare;
- The earning capacity of each spouse, including consideration of each spouse’s education, training, skills, work experience, and length in or absence from the job market; and
- The time needed for the spouse requesting maintenance to acquire sufficient education or training to be in a position to find appropriate employment.
Should I Consult a Divorce Attorney?
Yes, yes, and yes. The legal forum can be confusing and a challenge to navigate. The court requires certain forms and classes for parents of minor children and determines what evidence will be considered in making its orders. A lawyer can help you navigate the legal process, advise you on your best options, and make sure the documents are in proper form. It is much easier and less costly to do things right the first time than to try to fix a mistake that has been made. The right information is priceless!
And remember to ask your attorney about mediation. A form of alternative dispute resolution, mediation can be very helpful. Even if it does not result in a full agreement, it can help to narrow issues and lessen the number of litigation matters. And, if you do reach a full agreement, you will not need to appear in court at all!
Your friendly Indiana divorce attorneys wish you a Happy Valentine’s Day! If your day and your life are not happy and you are considering divorce in Indiana, please don’t hesitate to contact Mary Phillips at Camden & Meridew, P.C. for advice by using our online contact form or by calling 317-770-0000.
This website supplies general information about the law but it is provided for informational purposes only. This content does not create an attorney-client relationship and more importantly is not meant to constitute legal advice. You should not act on any of the information contained herein without first consulting an attorney.