«Section 1: AN OVERVIEW OF THE DIVORCE PROCESS 4 Introduction 4 Divorce Proceedings 4 The Petition 4 The Response 4 Provisional Orders 5 Discovery 5 ...»
DIVORCE IN INDIANA
What to expect and best practices to
follow during the divorce process
TABLE OF CONTENTS
Section 1: AN OVERVIEW OF THE DIVORCE PROCESS 4
Divorce Proceedings 4 The Petition 4 The Response 4 Provisional Orders 5 Discovery 5 Negotiated settlement 5 Mediation 6 Trial 7 Section 2: CHILDREN’S ISSUES 8 Introduction 8 Legal and Physical Custody 8 Joint Custody 9 Allegations of Child Abuse 9 Custody Litigation 9 Mediation 9 Investigation 9 Lawyer or guardian ad litem for the children 10 Trial 10 Children as witnesses 10 Child Support 10 Misuse of Children 11 Your Conduct With Your Children 11 Some Questions and Answers About Children’s Issues 12 Section 3: PROPERTY ISSUES 13 Marital Property 13 The Importance of the “Date of Filing” 13 Equitable Division and the 50/50 Presumption 14 Section 4: SPOUSAL MAINTENANCE 16
Section 5: CONDUCT DURING THE DISSOLUTION AND ANSWERS TO COMMONQUESTIONS 17 General Guidelines 17 Some Questions and Answers About the Divorce Process 17 Section 6: RECONCILIATION 19 Section 7: COUNSELING 20 Purposes of Counseling 20 If You Have Been to Counseling 21 Some Questions and Answers about Counseling 21 Sect
Section 13: CONCLUSION 32
INTRODUCTIONThis handbook is provided to assist in improving your understanding of the marriage dissolution process in the State of Indiana. Like any handbook, this one is no substitute for legal advice. It is intended only to give you a rough sketch of the dissolution process, applicable law, what to expect in a divorce and to help you and your lawyer work together more effectively.
Thanks to the American Academy of Matrimonial Lawyers for the use of portions of its materials in the preparation of this handbook.
Introduction The goal of the legal process of divorce is to conclude the legal relationship of a marriage, and to resolve matters incident to the dissolution, such as child custody, visitation, child support, spousal maintenance, property and debt division, and attorney’s fees, and costs.
A divorce decree, which is a document that usually incorporates the resolution of all applicable issues, can be based upon an agreement between the parties, or as a result from a contested trial before a judge. An agreement is usually less traumatic for you (and your children, if applicable), and less expensive, than a trial. Ultimately, most cases are resolved without a trial. In Indiana, when matters are resolved by agreement of the parties, the parties do not go to Court at all.
In Indiana, what is commonly known as “divorce” is frequently referred to as “dissolution of marriage” and, therefore, these terms are generally used interchangeably.
Divorce Proceedings The following description applies in Indiana. Legal procedures in other states may be, and frequently are, very different. The development of any case is highly fact-dependent. Be mindful of this if you hear stories from friends or relatives about their divorces, particularly if they went through the process in other states.
The Petition A divorce begins with the filing of a “Verified Petition for Dissolution of Marriage,” or simply “the Petition,” with the Court. With this document, one spouse legally notifies the Court and other spouse that the filing spouse is requesting that the Court legally terminate the marriage. The Petition usually lists additional relief requested of the Court, such as child custody, parenting time, child support, spousal maintenance, a division of property and liabilities, attorney’s fees, and costs. It may also include requests for provisional support, which is discussed in paragraph 3.
The Response Indiana law does not require the opposing party to file any type of formal response to the Petition with the Court, though a response is permitted.
Provisional Orders Provisional orders, also called temporary orders or pendente lite orders, set the ground rules while the divorce case is pending. To some extent, a divorce can be thought of as having two stages. In the first stage, which normally occurs in the first few weeks after the filing of the Petition, the parties (or the Court, if the parties cannot agree) must decide how various issues will be handled until the divorce can be finalized. For example, until the divorce is final, who will have temporary custody of the children? How much child support will be paid? Who will have temporary possession of the marital residence? Who will pay which bills?
Generally, most divorces will also include a restraining order on assets, which prohibits either party from spending down or transferring marital assets, except “in the usual course of business or for the necessities of life.” This order is intended to keep marital assets from disappearing or being spent before they can be divided between the parties pursuant to the final divorce decree.
In some cases, the parties feel comfortable informally agreeing to “maintain the status quo” and no formal provisional order or agreement is necessary.
It is usually in both spouses’ best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by going in front of the Court for provisional orders. In our experience, most provisional orders are agreed to by the parties, through negotiation and compromise, and a hearing for a provisional order is not necessary. If an agreement is reached, it will be reduced to a written agreement by the attorneys, signed by both parties, and then submitted to the Court for its approval. Once the Court approves the agreement, the terms of the agreement will become a Court order, which must be obeyed by the parties, or else a violating party may be subject to contempt sanctions.
Discovery During the dissolution process, each spouse is entitled to information from the other about the case. The legal procedures for obtaining that information are called “discovery.” Discovery may be a simple, speedy process, or one consuming a great deal of time, energy and money. This will depend mostly on the complexity of the case, as well as the cooperation of each party in providing requested information.
There are several different common discovery procedures. Interrogatories, which are written questions, may be sent to the other party requiring a written response, made under oath.
Through a request for production, one party may obtain documents from the other. In a deposition, the spouses or other persons, including experts, may be required to answer questions under oath in a lawyer’s office while a Court reporter takes down what is said and then prepares a transcript. If your deposition is to be taken, there will be advance notice and your lawyer will discuss the procedure with you.
Indiana law provides for a very broad standard for what information is “properly discoverable.” In almost all divorces, any type of financial information relating to either of the parties is properly discoverable, such as paycheck stubs, tax returns, bank and brokerage statements, etc. In divorces where child custody is contested, almost any information is properly discoverable, including issues pertaining to a party’s character or parenting ability, such as drug and alcohol abuse, or mental health issues.
Negotiated settlement Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. Also, people who have been through a divorce value the privacy and control that a negotiated agreement gives them. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the Court are usually expensive and sometimes inadequate. For these reasons, following discovery—and at any time, even during trial—the spouses and their lawyers should attempt to negotiate a settlement.
Because of the limited number of judges available to hear trials, most Courts require the parties and their lawyers to attend a mediation in which a neutral third-party tries to assist the parties (and their attorneys) in coming closer to a settlement. Mediation is discussed in greater detail, below.
Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot and will not make that decision for you.
Mediation As suggested above, there are other methods of resolving your case than through a trial. These methods are collectively called alternative dispute resolution. While there are many types of alternative dispute resolution, the one used most frequently in the family law setting is mediation.
The cost of the mediator is generally shared equally between the parties. In our experience, mediation is frequently successful, and we normally recommend attempting mediation in all but the most unusual of cases.
Trial If you and your spouse cannot settle your case, the matter will go to trial. At trial, you (and your attorney) will tell your story to the judge. It is told through your testimony, the testimony of other supporting witnesses called by your attorney, and documents called exhibits. In Indiana, trials are performed exclusively with a judge, and never to a jury.
Trial is likely to be expensive, and can be uncomfortable. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge, who is a stranger -- possibly with a viewpoint, temperament and values very different from yours -- tells you and your spouse how to reorder your lives, divides assets and liabilities, and dictates when each of you may see your children, and how decisions affecting your children will be resolved.
One reason that we encourage pre-trial settlement is because, in our experience, many clients are prone to believing that the judge will see everything the same way the client does. (“My spouse is obviously a terrible person, so I’m sure the judge will see that clearly.”) In reality, and in most cases, the judge does not buy completely into either party’s perspective of the case, and frequently issues a Decree that both parties find partially or completely unsatisfactory.
Sometimes, a trial does not end the case. Each party may, within a limited period of time, ask the judge to reconsider his or her decision, or appeal to a higher Court. Either of these post-trial steps adds more time and expense to the divorce process.
Introduction Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.
Issues related to children can present challenges for your lawyer as well. While your lawyer’s loyalty is to you, your lawyer also has an obligation as an officer of the Court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.
Legal and Physical Custody Indiana law makes a distinction between “physical custody” and “legal custody.” Physical custody is the responsibility of having the children live with you. The parent whom the children are with at the time has the responsibility for making day-to-day decisions for them. Day-to-day decisions include what the children eat and wear, whom they play with, and when they go to bed. “Legal custody” is the right to make important long-term decisions affecting your children’s welfare that include the children’s education, religion, and non-emergency medical care.
Many variations of legal and physical custody are possible. There may be joint legal custody (in which important decisions are made together by the parents), but one parent has primary physical custody. Or, there may be sole legal custody with that parent also having primary physical custody. Also, there can be a joint legal and physical custody arrangement, such as where the children alternate spending some period of time (often a week) with each parent.
In most cases, a parent without primary physical custody will have defined “parenting time.” (In the past, this may have commonly been referred to as “visitation.” However, Courts now want to avoid the term “visitation” as both parents’ ability to parent their children is important.) In Indiana, there is a presumption that the non-custodial parent will have parenting time as prescribed by the Indiana Parenting Time Guidelines (IPTG). We have copies of the IPTG which you should receive from your attorney or paralegal. At the risk of vastly oversimplifying, the IPTG provides a minimal schedule of parenting time where the non-custodial parent has a minimum of parenting time every other weekend, one mid-week evening per week, alternating major holidays, and a substantial portion of the summer.
Joint Custody There is no one standard “joint physical custody” arrangement. Some parents alternate weeks with the children, others alternate months. Still others divide the children’s time unequally, but in a manner that meets the needs of each particular family. Parents who work out these arrangements themselves are usually more creative than Courts are when the parents cannot agree. Legal custody, in which the parents share the right to make certain decisions for the children, can also be joint or divided in appropriate cases. Joint custody is not necessarily appropriate in every case, and some judges frown on children not having one home base.