Family Law – Dissolution of Marriage

Filing For Dissolution:

Generally in Indiana, a party can also file to have their marriage dissolved if they file a verified petition containing all the necessary and relevant information.[1]   The parties can also file for a legal separation under I.C. § 31-15-3.  In general, a court can degree a marriage dissolved if it finds one of the following: (1) irretrievable breakdown of marriage; (2) a felony conviction of one of the spouses after entering the marriage; (3) impotency that existed at the time of the marriage; and (4) if one of the parties suffers from incurable insanity for more than 2 years.[2]

1. Provisional Orders In Dissolution Action:
   • Generally, a party can file a motion in an action for dissolution of marriage or legal separation. The motion can be temporary maintenance, temporary support or custody of child, possession of property, counseling, or a protective order.[3]
   • Any motion, besides for the protective order, must be accompanied by an affidavit that states the factual basis for the motion, and the amounts request/relief sought.[4]
2. Spousal Maintenance:
   • Spousal maintenance generally is when one spouse pays for the maintenance of their former spouse following a divorce.
   • When is it generally given
     1. Generally, a spouse can receive spousal maintenance from the spouse if the spouse receiving the support is physically or mentally incapacitated to the extent that it materially affects their ability to support themselves; the support will be for the duration of incapacity, subject to further court order.[5]
     2. Also a spouse can receive spousal support after the dissolution of their marriage if that spouse lacks sufficient property to support themselves; this includes the marital property appointed to that spouse after the dissolution of the marriage.[6]
     3. Several of the factors the court looks at when determining the amount and duration of spousal support are (1) educational level of each spouse at the time of marriage and at the time of filing for the dissolution; (2) whether an interruption in education, training, or employment resulted from homemaking or child care responsibilities or both; (3) the earning capacity of each spouse (including, education, employment skills, work experience, etc.); (4) and the time and expense required for the spouse seeking maintenance to find appropriate employment.[7]
3. Final Hearing after Mandatory 60-Day Waiting Period:
   • Generally, if both parties have signed their verified pleadings, which need to contain a written waiver of the final hearing, and either a statement saying there is no contested issues in the action, or a written agreement that settles any contested issues between the parties, then the court after 60 days of the petition being filed, can enter a summary dissolution decree without a final hearing.[8]
4. General rule regarding division of assets under Indiana Divorce Law:
   • Parties can always enter into an agreement during the dissolution of the marriage, and the agreed upon terms will be entered into the judicial decree where the parties will be ordered to perform according to those terms.[9]
   • Once the parties agree upon the terms, specifically regarding property, a court cannot subsequently modify those terms if they were incorporated and merged into the dissolution of marriage decree.[10]
   • Generally, Indiana allows for the equal division of property of spouses, whether the property was owned by one before the marriage, acquired by either after the marriage but before the final separation of the parties, or acquired by joint efforts of the parties.[11] The court will attempt to divide the property as it sees as just, proper, and reasonable.[12] The presumption of equal division of martial property can be rebutted by a party if they present relevant evidence that would show the court that equal division would be unjust and unreasonable.[13] Under C. § 31-15-7-5, there are several factors that can adequately establish the unjust and unreasonable equal division of marital property.

[1] I.C. § 31-15-2-5

[2] I.C. § 31-15-2-3(1)-(4).

[3] I.C. § 31-15-4-1(a)(1)-(5).

[4] I.C. § 31-15-4-2(1)-(2).

[5] I.C. § 31-15-7-2(1).

[6] I.C. § 31-15-7-2(2)(A).

[7] I.C. § 31-15-7-2(3)(A)-(D).

[8] Romualdo P. Eclavea, Generally; Scope of Decree, 10A Ind. Law Encyc. Divorce § 53 ; I.C. § 31-15-2-13.

[9] I.C. § 31-15-2-17(a)-(b).

[10] I.C. §  31-15-2-7(c)

[11] I.C. § 31-15-7-4(a)(1)-(3).

[12] I.C. § 31-15-7-4(b)(1)-(4).

[13] I.C. § 31-15-7-5.