DISSOLUTION OF MARRIAGE IN INDIANA

This brochure will give you answers to some of your questions about divorce and the services offered by our firm. You may want to read it carefully before your next appointment and keep it to refer to as we go along.

(1) Grounds. Indiana has adopted the concept of "no-fault" divorce, making it generally unnecessary to prove cruelty, adultery, etc. in order to obtain a divorce. The usual ground is to show the Court that the marriage has suffered an irretrievable breakdown without reasonable expectations of reconciliation.

(2) Legal Separation. Although in some isolated instances a form of legal separation is possible, it is not generally used by our office. If you are not ready for a divorce, but you want to talk things over with someone, we recommend counselling services and not legal services. A legal separation has severe limitations. We will, of course, discuss a legal separation if you wish.

(3) Residence Requirements. Prior to filing your Petition for Dissolution, you must reside in Indiana for six (6) months and in the county where a petition is to be filed for ninety (90) days. There are limited exceptions which may apply if you do not qualify under this general rule.

(4) Starting the Procedure. The first step is the preparation and filing of a Petition for Dissolution. The petition states the names and ages of the husband, wife, and all children born or adopted during the marriage; when you were married and when you separated; the residence of the parties; and asks the court to dissolve your marriage. It also asks the Court to provide for support, parenting time, property divisions, attorney's fees, and court costs. If your spouse has already filed for divorce, be sure to bring a copy of the petition, especially if you have been served by the Sheriff or Certified Mail. If children are involved, you may be required to attend a class on the effect of divorce on children and the family.

(5) Actual Separation. There probably is no legal requirement for actual separation before filing the petition. Most judges will not evict a spouse without a hearing, unless there is an emergency. The date of filing the petition for divorce is normally considered the date of separation.

(6) Who Should File. There is no legal significance as to whether the husband or the wife files the petition, although there may be procedural and tactical advantages for the petitioner. Pride is another matter. Talk it over with your spouse, if you can, and let's avoid a race to the courthouse and further hurt feelings over this technicality.

(7) Waiting Period. No divorce can be granted until at least sixty (60) days have passed following the date of filing the Petition for Dissolution. This is a minimum time period. Our experience indicates a normal interval of about eighty (80) days for divorces in which there is a settlement agreement and twelve (12) months or more for contested divorces. During the waiting period, we will be trying to help you work out the details of custody, parenting time, support, and property settlement. Indiana law permits a waiver of the final hearing. This means that an uncontested divorce may be submitted to the court for approval without either party appearing in court.

(8) Service or Waiver? After the Petition for Dissolution is filed, the other spouse must receive proper notification. One way to do this is to ask the Sheriff to hand deliver a copy of the petition to that spouse. Sometimes this brings on embarrassment and angry feelings. We recommend either certified mail or a waiver of summons, unless there are extenuating circumstances.

(9) Custody. Disagreement over custody and parenting time is guaranteed to put you right in the middle of a bitterly contested and expensive divorce. It will probably be best for your entire family if you and your spouse can come to an agreement regarding custody. We will give you additional information on custody.

(10) Parenting Time. If you and your spouse can agree to details of parenting time, the Court will usually approve the plan which you have worked out. We encourage liberal parenting time for both parents except in extraordinary circumstances.

(11) Child Support. There are child support guidelines the Court will follow to arrive at an amount for child support. In determining a fair amount of child support, the combined weekly adjusted income of both parents is considered. Weekly adjusted income may include salaries, wages, commissions, bonuses, regular overtime, gifts, and prizes. A court may also impute income of a party due to unemployment or underemployment. Also considered is the number of overnights spent with each parent. The court may deviate from guideline support, for example, if one party pays union dues as a condition of employment, the non-custodial parent provides child care or buys clothing, or the custodial parent lives a substantial distance away and significant travel expenses are incurred. The guidelines also consider extraordinary medical or educational expenses or work-related daycare costs. Adjustments may be made for joint custody or other natural or adopted children living in a party's household. You are required to sign the guidelines and to furnish verification of income.

(12) Health Insurance. The court will order one parent to provide comprehensive medical coverage if it is obtained through an employer at reasonable cost. The amount paid for insurance may be deducted from the weekly gross income of the parent who pays for it. The court will also provide for allocation of the uninsured medical expenses.

(13) College Expenses. The court may include college expenses as part of the child support order or as a separate order, after consideration of the ability of the parents and child to contribute to college expenses. The court may also require a specific level of academic performance by a child as a prerequisite for parental payments.

(14) Emancipation. The court can require a spouse to make child support payments only until the child is twenty-one (21), or is emancipated, whichever comes first. Generally a child may be emancipated if he is over eighteen (18), has finished post-secondary school, and is or is capable of supporting himself. If you have a child with a mental or physical disability, be sure to let us know. The court may award support for a disabled child beyond his or her twenty-first (21st) birthday.

(15) Property Division. Indiana law presumes that all property should be divided 50/50 unless you or your spouse can present evidence that an equal division is not just and reasonable. If you and your spouse are in accord and if you divide the property "justly and reasonably", the Court will probablyapprove your agreement. If you cannot agree, the Court will probably divide the property equally. The court may consider dissipation of assets, such as gambling or money spent on a third party.

When you complete the confidential questionnaire, include property that was owned by you or your spouse before the marriage. Also, please list all property received by either of you through gift or inheritance. The Court can take this property into consideration. Be sure to list any pension benefits your spouse may receive on retirement. The Indiana legislature has stated that the right to receive a pension at some future date is "property" that the Court must include in determining a fair settlement.

Liabilities are also property that the Court may divide. If you do not list all your liabilities, the Court cannot apportion them between you and your spouse fairly. If your spouse fails to make required payments, the creditors may come only to you for payment.

(16) Temporary Relief. If your spouse is being physically abusive to you or to the children, refuses to provide reasonable support or to give you information concerning property, or refuses to permit reasonable parenting time, the Court will hear your evidence and determine if you are entitled to relief while the case is pending. The Court will also provide for temporary custody, parenting time, and support of the children.

(17) Uncontested Divorce. Your divorce will be contested unless you and your spouse agree that a divorce should be sought and agree to ALL aspects of custody, parenting time, support, property settlement, and the payment of liabilities, attorney's fees, taxes owed, and court costs, BEFORE you come to see us AND there are no changes after the Settlement Agreement is drafted. If your spouse disputes ANY of these matters, you do not have an uncontested divorce, even if a trial is not necessary.

(18) Maintenance. Indiana courts can only provide for maintenance in limited circumstances. One is the incapacity of a spouse which is so severe that the spouse's ability to work is substantially impaired. Another involves a spouse without sufficient property who also is the custodian of a child whose condition does not allow the spouse to work. Lastly, rehabilitative maintenance can be awarded under limited circumstances for up to thirty-six (36) months. This is for retraining to acquire job skills.

However, it is possible for a spouse to obtain income tax advantages by agreeing on payments which can qualify as alimony under the tax laws. A court cannot order alimony.

(19) Filing Fees and Costs. The court charges a filing fee in all new divorce cases and there may be investigations, appraisals or depositions which add cost which in certain complex cases can be significant. You will be required to pay for these items as the case proceeds, since it is not our policy to lend money to finance your case. We will try to give you estimates. Obviously, the more complicated the case, the more the cost.

(20) Our Fees. The exact fee will vary with the services you require. Our fees our outlined in the Attorney/Client Hourly Legal Fee Agreement which will be provided to you at your initial consultation.

(21) One Lawyer for Both of You? We do not believe it is either practical or ethical for a lawyer to represent competing interests. In those isolated instances where you and your spouse have agreed on everything, it may be possible for us to do all of the legal work. If that is the case, we can only represent one party and the other party must proceed unrepresented. 

(22) Reconciliation. Sometimes divorce seems like the only solution. Often it is not. After a divorce action is commenced, you may decide to change your mind and try to work things out. Our policy is to encourage efforts toward reconciliations, and if you decide to drop the divorce action you will owe legal fees only for those services actually performed and costs expended up to that time.

(23) Change of Wife's Name. A wife's former name may be returned to her as part of the final Dissolution Decree at no additional charge. We generally suggest that this be limited to the restoration of the maiden name when there are no children, or to the restoration of a former married name when there are children of that former marriage. If you want this service, you must let us know before we prepare the Petition for Dissolution.

(24) Final Divorce. If there is no appeal, your divorce will be final the day it is granted in Court or on the day the judge signs the Dissolution Decree, if that date is later.

(25) Dating. You are married. We all know this is not 1890, but your spouse might use it against you. Make your own decision, but be prepared to face the problems that can arise. It is crucial that you be candid with us when we ask you about this.

(26) Confidentiality. We must have all the facts to represent you properly. We have a questionnaire for you to complete so that we may have some basic information. Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission.

(27) Our Professional Services. In performing legal work for you, we provide an experienced attorney, competent staff support, modern equipment and research library facilities. Your legal problems are given our continuing personal attention in an effort to obtain for you the best results possible in the most reasonable time and at a reasonable cost. Although we are interested in helping you resolve your personal problems, we are not trained to provide counselling services.

(28) Keeping You Informed. We will make every effort to keep you informed. You will receive copies of all documents prepared or received by us. A paralegal will also be assigned to your case. She will be easy to reach and can give you information or take messages, but she cannot answer your legal questions. Try to work with her. It will make things easier and will hold down the cost of your divorce.

(29) Your Responsibilities. We expect you to be cooperative and truthful. If you are not, we will not continue to represent you. We also expect you to handle your financial commitments to our office in a prompt and businesslike manner. Please notify us of any changes of address or telephone number or if you learn anything that may affect your case.

(30) General Suggestions. Your well-meaning friends and associates may offer you advice about your case. Frequently such advice is not accurate and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and they differ from every other case.

(31) New Wills.  We suggest that you have a new Will prepared following your divorce. We will be happy to refer you to an attorney to assist you upon your request.

We appreciate the opportunity to be of service to you at this particularly difficult time. Thank you for your trust and confidence.