Family Law
Divorce FAQs

 

Resources:

Indiana Parenting Time Guidelines | Child Support Guidelines
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In This Page:

Divorce | Alternative Dispute Resolution
Child Custody | Child Support | Property Distribution

 

Divorce

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1. What is a divorce?

A divorce is a legal process by which a marriage is legally terminated and the parties are restored to the status of single persons. In a divorce proceeding, other related issues such as disposition of property, child support, child custody, and parenting time are resolved by the parties, a mediator, or a court.

2. When can I file for divorce?

At least one (1) of the parties must have been a resident of the State of Indiana or stationed at a United States Military Installation within Indiana for six (6) months immediately proceeding the filing of the petition for dissolution. In addition, at least one of the parties must have been a resident of the county or stationed at a United States Military Installation within the county where the petition is filed for three (3) months immediately proceeding the filing of the petition for dissolution.

3. Can I stop the divorce?

Unfortunately, if one spouse wants a divorce it is very difficult for the other spouse to stop the divorce. The court may require the parties to seek counseling for themselves or for a child. However, even if counseling is required, it is unlikely that one spouse will be able to stop a divorce.

4. How long will the divorce take?

A final hearing is not allowed to be held any earlier than sixty (60) days after the filing of the petition for dissolution. The case may be delayed because of crowded court dockets. In addition, if you and your spouse cannot reach an agreement and your case becomes "contested" it will take longer to complete.

5. What is spousal maintenance?

The court may order spousal maintenance in a dissolution of marriage if the court finds one of the following: 1) A spouse is physically or mentally incapacitated to the extent that such spouse cannot support himself or herself; 2) A spouse lacks sufficient property to provide for that spouse’s specific needs and the spouse is a custodian of a child whose physical or mental incapacity requires that spouse to forgo employment; or 3) After considering a spouse’s (a) educational level, (b) whether there has been an interruption in the education, training, or employment of the spouse seeking maintenance as a result of homemaking and/or child care responsibilities, (c) the earning capacity of each spouse, and (d) the time and expense necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, a court may find that rehabilitative maintenance for that spouse is necessary for a period not to exceed three (3) years.

6. What is a Prenuptial Agreement?

Prenuptial (antenuptial) agreements are legal contracts entered into by parties contemplating marriage in order to settle their property rights during marriage and upon termination of marriage either by death or by dissolution. Such agreements are favored by Indiana law. Generally, an agreement should be in writing, contain full disclosure of all assets before the marriage, and be signed by both husband and wife. In addition, it is generally recommended that prenuptial agreements should be negotiated and reduced to writing well in advance of the anticipated wedding date and that both parties are represented by independent counsel.

7. What can I do to minimize my legal fees and costs?

Promptly collect all the records or other documents your lawyer requests. If it become necessary for your lawyer to obtain such documents and records from another source, that will involve more effort and cost. Be prepared for telephone calls and office conferences with your lawyer by maintaining a list of the issues or questions you want to cover with your lawyer.

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Alternative Dispute Resolution

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8. Are there means of resolving our divorce without going to trial?

Fortunately, there are several Alternative Dispute Resolution ("ADR") techniques which may be used in resolving or assisting in the resolution of a domestic relations matter. ADR generally refers to any dispute resolution process or technique that does not involve litigation. For divorce cases, parties primarily utilize settlement negotiations and mediation.

9. What is mediation?

Mediation is a method in which a neutral and impartial third party or person assists the parties in resolving their disputes. Unlike a trial, the final decision rests with the clients. Mediation is confidential, informal, and generally, less expensive than litigation or other processes. The parties are allowed to mediate with their attorneys present to provide them with guidance or without their attorneys to reduce costs.

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Child Custody

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10. What is the difference between physical custody and legal custody?

Physical custody defines with whom the minor child will reside and who is responsible for the care, supervision, or welfare of the minor child. Legal custody defines the person who has the authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care and religious training. Joint legal custody means that both parties will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care and religious training.

11. Who is entitled to custody of the child?

In Indiana, there is no presumption favoring either parent and both parents are entitled to custody. The court determines custody in accordance with the best interests of the child. In determining the best interest of the child, the court considers all relevant factors including the age and sex of the child, the wishes of the child’s parents, 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), the interaction and interrelationship of the child with the child’s parents, siblings, and any other person who may significantly affect the child’s interests, the child’s adjustment to his home, school, and community, the mental and physical health of all individuals involved, any evidence of domestic or family violence, and any evidence that the child may have been cared for by a defacto custodian.

12. Can a parent relocate with the children to another state?

The relocation of a parent with the parties’ minor child depends on the unique facts and circumstances of each case. The relocating individual must file a notice of intent to relocate with the clerk of the court and, upon motion of either party, the court will set the matter for hearing to determine if the relocating parent may actually relocate with the minor child. There are specific timing and content requirements related to the notice of intent to relocate. Initially, the relocating individual has the burden to prove that the proposed relocation is made in good faith and for legitimate reason. If the relocating individual can prove good faith and a legitimate reason, the non-relocating parent must then show that the proposed relocation is not in the best interest of the child.

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Child Support

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13. How is child support determined in Indiana?

The amount of child support is governed by application of the Indiana Child Support Guidelines. The Guidelines are designed to ensure consistency and predictability in child support amounts. In any proceeding for child support, there is a rebuttable presumption that the amount of child support which would be awarded by applying the Indiana Child Support Guidelines is correct. However, the court may conclude that the evidence in a particular case justifies deviating from the Guideline amount. The Guidelines utilize a Child Support Obligation Worksheet to calculate the presumed child support amount. The Child Support Obligation Worksheet considers the weekly gross income of the parties, any subsequent born children, any support obligation or duty for prior born children, maintenance received by either party, work-related child care expenses of each parent, weekly insurance premiums paid to provide insurance coverage for the children, and a parenting time credit which is based on the number of overnights exercised by the parent paying support.

14. Can child support be modified?

A child support obligation may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms of the existing order unreasonable. A child support order may also be modified upon a showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines and the order requested to be modified was issued at least twelve (12) months before the petition requesting modification was filed.

15. When does the duty of child support end?

Generally, the duty to support a child terminates when the child becomes twenty-one (21) years of age. However, under certain circumstances, a child may be emancipated before becoming twenty-one (21) years of age in which case child support would cease.

16. Can I make the other parent pay for college?

Yes. The court may enter an educational support order requiring either or both of the parents to contribute to the child’s educational expenses.

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Property Distribution

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17. What property gets divided in a divorce?

In a divorce, the court will divide the property of the parties whether the property was owned by either spouse before the marriage, acquired by either spouse after the marriage and before the filing of the petition for dissolution or acquired by the joint efforts of both parties.

18. How is the property divided?

In Indiana, an equal division of the marital property is presumed to be just and reasonable. However, an equal division of marital property is not mandated by the court and the presumption of an equal division may be rebutted by a party who presents relevant evidence that an equal division would not be just and reasonable. The court will consider the following evidence: 1) the contribution of each spouse of the acquisition of the property, regardless of whether the contribution was income producing; 2) the extent to which the property was acquired by each spouse before the marriage or through inheritance or gift; 3) the economic circumstances of each spouse at the time the disposition of property is to become effective; 4) the conduct of the parties during the marriage as related to the disposition or dissipation of their property; and 5) the earnings or earnings ability of the parties.