Divorce


Introduction

The end of a marriage is legally complex. In addition, a considerable amount of emotional pain is incurred. If your marriage is in peril, consult an attorney. You will need sound professional advice to determine child custody, financial concerns, and the fair division of marital property.

Alternatives to Divorce

Alternatives to divorce include: marriage counseling, annulment or separation. Many couples try counseling from a marriage counselor, social worker, or psychotherapist as an alternative to divorce. Through counseling, you and your spouse may be able to resolve your differences by learning better communication skills and gain a better understanding of your individual needs and desires.

Annulments are very rarely the solution. A marriage can only be annulled if there was a statutory defect at the time of the marriage ceremony. Such defects include: one of the parties being underage, fraudulently obtaining consent, and incestuous or bigamous marriages. These issues can only be addressed by a court of competent jurisdiction.

Separation may provide for a cooling off period. A written agreement or a court order is best to protect both parties' interests. These agreements address such things as: preservation of assets, payment of liabilities, child custody, visitation and support, and payment of spousal support (if any).

Grounds for Divorce

Indiana is among the states that have adopted a version of "no fault" divorce. A divorce can be obtained upon the showing that the parties have irreconcilable differences and that the marriage is irretrievably broken.

Divorce Procedure

Divorces may be contested or uncontested. An uncontested divorce can be granted when the parties agree on all the issues including: child custody, support, visitation, and property and debt division. It involves: the preperation and filing of documents with the court, a delay of at least sixty (60) days, a waiver of hearing by both parties, and then a final order by the court can be entered. Generally, a court appearance is not necessary.

A contested divorce, where the parties cannot agree to terms, resembles a standard lawsuit with hearings and an eventual trial before a judge. A preliminary hearing is held shortly after the petition for a dissoulution is filed. At this hearing, provisional matters will be resolved and guidelines will be established to govern the parties until the final hearing. Such matters as child custody, support and visitation, preservation of assets, payment of debt and spousal maintenance are temporarily determined.

Mediation can be part of the divorce procedure. Mediators are trained professionals that attempt to resolve disputes and reduce the issues, if not settle the matters altogether. Issues that cannot be resolved can then be settled by a judge at a final hearing.

Child Custody, Support, and Visitation

Issues concerning the children often cause the most disputes. Custody may either be joint (both parties sharing the decision making and physical custody of the children) or one parent may have sole custody and the children will live with that parent. The other parent then would have visitation rights which include: part of the weekends, holidays, and vacations.

If you are unable to agree on custody, the court will award custody based on "the best interests of the children". A party who later wants a change in custody must show that there has been a substantial change in the circumstances of a continuing nature and that a new arrangement would be in the best interests of the children.

Child support in Indiana is generally established using Child Support Guidelines that have been adopted by the Family Courts. These guidelines are based on gross earnings of the parties. The court may impute earnings to an under-employed or unemployed spouse. The expense of child care necessary because of employment is also included in the formula used to determine child support. Child support may later be modified upon a showing of a substantial, continuing change in the circumstances of the parties.

Indiana child visitation is also controlled by guidelines. These guidelines establish minimal accepted standards. Generally, the non-custodial parent is allowed: alternating weekends, alternating holidays, alternating birthdays, part of the Christmas vacation and part of the summer vacation. The parties are encouraged to expand visitation as much as is reasonable. The courts require both parties to work together for the best interests of the children (see Indiana Parenting Guidelines publication).

Spousal Support

Spousal support is called spousal maintenance in Indiana. Either spouse may be entitled to support depending on: employment, education, and medical or mental disabilities. Generally such payments for maintenance are limited to periods of less than two years but can extend longer in extreme cases.

Property and Debt Division

The courts have wide discretion in the division of marital debts and assets. Property acquired during the marriage, as well as property owned before the marriage, and property acquired by inheritance may be considered in the court's determination. Factors considered by the court include: contributions to the marital estate, financial resources, needs, income potential, and career potential of each spouse. The statutes presume a 50/50 division of assets and liabilities. Without an agreement, the court will make the final determination.

Divorce Checklist

  1. Alternatives:
    1. Marital Counseling
    2. Separation
    3. Annulment
  2. Children Issues:
    1. Custody
    2. Visitation
    3. Support
    4. Decision Making
  3. Grounds for Divorce
    1. Irreconcilable Differences
  4. Financial Concerns
    1. Division of Assets and Debts
    2. Child Support
    3. Health Insurance
    4. Spousal Support
  5. Marital Settlement Agreement
    1. Child Custody
    2. Child Support
    3. Division of Property
    4. Division of Debt
    5. Medical Expenses
    6. Pension Rights
    7. Spousal Support
    8. Child Visitation
  6. Taxation Issues
    1. Child Support
    2. Spousal Support
    3. Division of Retirement Accounts
    4. Social Security Issues
    5. Division of Assets

In Closing

It is important to protect your rights and your future when seeking a divorce because it is so emotionally and financially complex. Your lawyer may suggest alternatives that will help save your marriage. However, if divorce is unavoidable, competent legal advice is necessary to steer you through the minefields that await you.

This page constitutes advertising under the rules regulating the legal profession. It is not a substitute for legal advice.