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August 17, 2013
The Criminal Case Process
November 2, 2013

Indiana Divorce Basics

images (3)No one enjoys the prospect of their family splitting up.  You may be concerned about children, property, debts, insurance, future income, or what other people might think.  You are full of questions, looking for answers, and need an attorney to help you address the legal process.   This information is being provided for informational purposes only and sets out the basic framework and process for filing a divorce.  It should not be considered a substitute for consulting with your own legal counsel.

Where and how do I file?

Indiana law does not require a reason to seek a divorce; all divorce petitions in our state simply refer to irreconcilable differences.  Some states still require a stated reason for divorce, though they are in the minority.  Your divorce petition may only be filed in the state that you or your spouse have resided for the past 6 months, and under most circumstances the county in which you or your spouse have resided for the past 3 months.  It must be signed by you, and be accompanied by either a filing fee (currently $161, plus $13 if you want the sheriff to serve the paperwork) or a request for a fee waiver.  In Johnson County, all cases are filed at the Clerk’s office and then divided randomly between Johnson Circuit Court and Johnson Superior Court No. 2 pursuant to our local rules and case allocation plan.  Other counties divide cases by their local rules, and some even let you select the court to hear your case.  The filing of the petition starts a 60-day clock running for the earliest date that you can be divorced.

What happens after I file? 

Most divorces require preliminary matters to be resolved, such as who is going to live in the marital home, who is paying what bills during the marriage, where are the children going to live, and what child support should be paid.  These matters are resolved at a preliminary or provisional hearing, normally held within the first few weeks after the divorce is filed.  The purpose of this hearing is not to resolve all issues permanently, but to get enough resolved for the couple to start establishing independent residences and lives.  It is normally scheduled for no more than thirty minutes before a judge.  The judge normally will make their ruling on the record so everyone leaves knowing what is going to happen.  In advance of this hearing, we do light discovery – finding out relative incomes or earning capacities and taking a snapshot of the marital estate (property and debts).   If both parties agree on the terms, it is common that we put together a written agreement for the judge to approve instead of holding a hearing.

So we know what is going to happen while the divorce is going on, but that isn’t going to last forever, is it?

Everything decided at the preliminary hearing or by a preliminary agreement is reviewable by the Court at a later time to ensure that neither party suffers an injustice.  Once we complete preliminary matters, we start heavy discovery – researching retirement accounts, life insurance accounts, bank accounts, and other significant assets, hiring experts to conduct real estate and personal property appraisals, taking depositions of parties and expert witnesses relative to child custody matters, and assessing whether we need to request a custody evaluation or guardian ad litem to represent the best interests of the child and tender a report regarding his or her recommendations to the judge.  Note:  not every case requires us to hire experts.

With all of the information in hand, we are prepared to start talking about settlement.  We will start the process by contacting the opposing party or their attorney to discuss our respective positions and attempt to come to an agreed resolution ourselves.  Clients are instrumental in this process, as they often have a good idea of what they want and what their spouse may be willing to agree on.  However, clients normally don’t have a good understanding of all of the terms that need to be included in their agreements.

If our informal efforts at settlement fail, most counties, including both Johnson County and Marion County, require that we participate in some type of alternative dispute resolution.  The most common type of ADR is mediation, a process by which a third-party neutral helps the parties and their attorneys come to an agreement, which is then reduced to writing and signed.  It has been said that 80% of cases referred to mediation settle.  Most family law mediations take place by the parties being in separate rooms and the mediator relaying offers and issues back and forth between the rooms until an agreement is reached or negotiations fall apart and the mediation ends in impasse.  Whether reached informally or in mediation, no agreement is binding until it is reduced to writing, signed, and approved by the judge or another judicial officer.  The agreement then becomes binding as an order of the court.

If we can’t reach an agreement, then we proceed to the trial, called a final hearing.  These hearings are held to a judge (they used to be to juries, but as you can imagine juries don’t want to deal with these type of cases) and may range anywhere from a couple of hours up to several days.  Judges are strictly bound in terms of issues that can be decided, evidence that can be considered, and factors that can be used to evaluate issues.  In terms of time and information, judges have the least and the parties have the most.  Our experience has been that parties who can agree on terms in a settlement agreement are more likely to honor the terms of the resulting order and spend less time in court in the future.  Those who force their way to a final hearing are often setting the scene for future disputes.  Whether by agreement or final hearing, the result will be an order on division of property and debts, an order on child related issues (if applicable), and a decree of dissolution of marriage – actually finalizing the divorce.

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If you proceed to a final hearing and don’t like the way the judge decides your case, you have thirty days after the judge issues his or her order to file a Notice of Appeal  to challenge the trial court judge’s findings before the Indiana Court of Appeals, which will be compiled by a panel of three appellate judges.

What happens if things change after the decree is issued?

If one or both parties fail to live up to the obligations set out in the court’s orders, the trial court retains jurisdiction over matters relating to the divorce and may enforce its orders by holding the offending party in contempt.  The court’s contempt power includes the authority to assess attorney fees or order up to 180 days of incarceration in the county jail.  The court’s orders relative to child custody, parenting time, child support, and college payment issues are modifiable so long as the court has jurisdiction over the children.  There are very specific requirements for what must be included and alleged in petitions for contempt and for modification, and you would be well advised to consult an attorney if you are considering either.

Issues related to children

The Indiana Supreme Court and its committees have developed guidelines for parties and courts to consider in framing custody, parenting time, and child support agreements and orders.  These guidelines are available on the court’s website:  www.in.gov/judiciary/rules/parenting/index.html.  The Court also provides a child support calculator, which is available by clicking on the Family Law tab to the left.  Other items to consider include medical insurance for the children, life insurance on the parents for benefit of the children, payment of college expenses, payment of co-curricular and extra-curricular expenses, parenting when distance becomes a factor, and parents wishing to relocate.  The ultimate consideration for the court in any of these matters is what is in the best interests of the child or children, though the General Assembly and courts have developed factors to consider in assessing what constitutes the best interest.

Other family law issues

Dillon Legal Group, P.C. handles all type of family law cases, including divorces, paternity suits, modifications, contempt actions, child support enforcement, guardianships and adoptions.  Please call us to set up an appointment to discuss your case today.