There is a minimum waiting period of 60 days after filing a Petition for Dissolution of Marriage before a final hearing can be held, or a final decree entered. During the course of the litigation, many dissolution of marriage actions are settled by agreement between the parties. When this occurs, an agreement as to child custody, parenting time (visitation), child support, spousal maintenance (alimony) and division of marital property and marital debts is prepared, signed by the parties and submitted to the court for approval. If an agreement is reached, the parties may file a written waiver to waive the necessity of a final hearing and simply submit the agreement to the court for approval. If approved, the court will incorporate the agreement into the Dissolution Decree entered by the court.
If the parties are unable to resolve one or more of their disputed issues by agreement, a final hearing is scheduled and the disputes are presented to the court. In scheduling a contested final hearing, the availability of a date is strictly determined by the amount of time needed versus the Court’s trial calendar. After all evidence and witnesses are presented, the court will issue its Dissolution Decree as to all matters based the evidence presented and the requirements of Indiana law.
Because you have established a relationship with an attorney who will present your demands and requests to the court, you have responsibilities to your attorney as a client. Your attorney will have experience in this area and will guide you through the process, so do what your attorney asks you to do. Clearly communicate to your attorney your wishes and priorities. Do not force your attorney to guess.
Be open and truthful with your attorney. If evidence later establishes that you have been untruthful or have lied to the court, you may be legally penalized by the court. Your communications with your attorney are confidential. Your attorney will not reveal embarrassing or harmful information that you may have disclosed, but by knowing all the facts, your attorney can help you plan the best way to correct or minimize harmful information. If you do not disclose important facts to your attorney, you are not being truthful. Surprises in court will leave you and your attorney dissatisfied and at a disadvantage in resolving your legal matter.
You have asked the court for certain help or relief, so you have responsibilities to the court as a party to a legal action. The court addresses and resolves your problems by issuing court orders. Even if you do not agree with the court’s orders, you must comply or you may be legally penalized. You will also put your case at a disadvantage and the final resolution may be delayed. If you believe certain orders are unfair, you can discuss with your attorney possible ways to have the court make modifications, but until orders are formally changed, you must follow the orders.
The court may issue temporary (or “provisional”) orders to be in effect while the case is pending and before the final decision. The person seeking temporary orders will file a motion or petition with the court (either with or following the filing of the Petition for Dissolution of Marriage or Legal Separation) for such things as the use of the marital residence, child custody and parenting time (visitation) rights, child support, spousal maintenance and assignment of responsibility to pay marital debts (such as the house or rental payments, car payments, insurance, utilities, finance companies and charge accounts) and the need for any restraining orders. These temporary orders are not necessarily what the court will award as a final order when the case is resolved.
Upon the motion or petition of a party to determine temporary or provisional orders, the court will schedule a hearing to determine the provisional orders that will control during the time the dissolution of marriage is pending. In cases involving minor children, Indiana law requires the court to schedule the hearing to determine provisional orders within 21 days of the filing of the motion or petition. In such instances, a notice of provisional orders hearing is normally served on the respondent with the summons and Petition for Dissolution of Marriage or Legal Separation.
By separate motion or petition or as part of the motion or petition for provisional orders, a party may request that restraining orders be issued. Restraining orders are orders that restrict or prohibit one or both of the spouses or others from certain behavior and activity. Restraining orders may be granted prohibiting harassment or abuse of the other spouse or excluding one of the parties from the marital residence. Restraining orders may also be granted to prohibit one or both spouses from transferring or disposing of marital funds or assets.
All temporary orders and restraining orders may be modified by the court on formal request, if appropriate. Temporary orders, unless modified, usually remain in effect and are enforceable from the time the court approves the order until the final action is granted.
Indiana law now calls “spousal maintenance” for what used to be called alimony. Spousal maintenance may be awarded as part of the provisional orders in order to maintain the standard of living (status quo) of the parties while a Petition for Dissolution of Marriage or Legal Separation is pending.
Indiana law allows only under very limited circumstances for spousal maintenance to be awarded to a spouse as part of the final Dissolution Decree or Decree. Spousal maintenance cannot be ordered by the court unless one of the following four circumstances exist: 1) The parties agree to spousal support in writing; 2) Due to physical or mental incapacity, one spouse’s ability to himself or herself is materially effected; 3) Due to physical or mental incapacity of a child, the custodial spouse must forego employment to care for the child; or 4) Due to the marriage, one spouse’s education, training or employment was unreasonable interrupted for homemaking or child care justifying an award of “rehabilitative maintenance.” In the case of “rehabilitative maintenance,” the court may order up to three years of rehabilitative maintenance to enable the spouse to get training or find appropriate employment.
A petition for Legal Separation initiates an action that does not legally end a marriage, but allows the court to issue orders concerning child custody, child support, parenting time (visitation), spousal maintenance (alimony) and temporary division of property. The parties remain married, but live separately. A legal separation may be decreed by the court for a period not to exceed one year upon a finding that conditions in or circumstances of the marriage render it currently intolerable for both parties to live together but that the marriage should be maintained.
A legal separation may not be commenced or pursued if an action for dissolution of marriage is pending, or if a counter-petition for dissolution of marriage is filed by the respondent spouse. If a legal separation is granted, the court may continue the marriage for a period not to exceed one year from the date of the legal separation decree. At any time prior to the expiration of the one year, the parties may petition the court to dismiss the legal separation or convert it to a dissolution of marriage. If no action is taken, the legal separation ceases at the end of the one year period.
Visitation is now called “parenting time.” The parent not granted physical custody is entitled to reasonable parenting time rights unless, after hearing, such parenting time is found by the court to be harmful to the health and well being of the child. Like custody determinations, the primary consideration in determining parenting time is the best interests of the child. Prior to March 31, 2001, each county or court in Indiana provided its own standard order or guidelines for parenting time. Effective March 31, 2001, the Indiana Supreme Court adopted the Indiana Parenting Time Guidelines as the presumptive guidelines for determining parenting time in all Indiana counties and courts. The Indiana Parenting Time Guidelines contain presumptive schedules for the minimum parenting time a non-custodial parent should spend with a child. The Guidelines do not prevent parents from agreeing to or the court from granting additional or reduced parenting time in any given case. The detailed schedules for parenting time for children of various ages and a thorough discussion of the policies behind and interpretation of parenting time schedules can be found by reading the Indiana Parenting Time Guidelines.
Divorce is now called Dissolution of Marriage. A dissolution of marriage is a civil lawsuit to end a marriage. It arises in a dispute in which the husband and wife cannot resolve their problems, and are asking the court to make the final decision and issue orders concerning child custody, child support, parenting time (visitation), spousal maintenance (alimony) and the division of property.
A dissolution of marriage is started by one spouse, the “petitioner,” filing a document called the “Petition for Dissolution of Marriage” with the clerk of court. In this initial petition, the petitioner must select state the grounds for requesting a dissolution of marriage from those listed in the statutes. The most commonly stated grounds for a dissolution of marriage is the “irretrievable breakdown of the marriage.” A marriage is irretrievably broken if either party believes that it is irretrievably broken. Indiana is considered a “NO FAULT” divorce state so that either party may petition for a dissolution of marriage without the other agreeing to it and without the need to “prove” grounds for a dissolution.
After the filing of the Petition for Dissolution of Marriage, the clerk of court serves the other spouse, the “respondent,” a copy of the petition and a summons by certified mail, hand delivery, or by leaving it at the respondent’s residence with a person over the age of 18. If the respondent’s residence is not known, a legal notice may be printed in a newspaper. The respondent may (but is not required to) file an answer in response to the petition or a counter-petition for dissolution of marriage.
Indiana statutes define what is marital property. Marital property means all assets of either or both parties including real estate, personal property, intangible property, stocks and bonds, bank accounts and retirement plans. The court has authority to divide any assets of the parties whether those assets were owned by one spouse before the marriage, acquired by one spouse in his or her own name after the marriage or acquired by the joint efforts or in the joint names of the parties.
The court is to presume that an equal division of marital property between the parties is just and reasonable. However, a party may rebut this presumption by presenting evidence that an equal division would not be just and reasonable including evidence of one of the following five factors listed in the statute:
1) The contribution of each spouse to the acquisition of the property;
2) The extent to which the property was acquired by one spouse either before the marriage or through inheritance or gift;
3) The economic circumstances of a spouse at the time the property is to be divided, including whether to award the residence or the right to live there for the period of time to the spouse having custody of children;
4) The conduct of the parties during the marriage relating to the disposition or dissipation of marital property; and
5) The respective incomes or earning abilities of the parties.
In deciding the property division, the court will apply the five factors listed in the statute to the evidence presented. If an equal division of property is not awarded, the court must explain in writing why an equal division would not be just and reasonable.
Unless a child is incapacitated or a court declares a child emancipated (self-supporting), the duty to support a child under Indiana law ceases when the child reaches his or her 21st birthday. The amount of child support must be determined by the procedures and schedules outlined in the Indiana Child Support Guidelines. The Child Support Guidelines contain basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents. The support schedules are based on the average cost of raising children in households across a wide range of incomes.
To calculate the appropriate amount of child support, the court first calculates the gross (pre-tax) weekly income of each parent. The gross weekly incomes of both parents are combined and the total is used to locate the proper basic child support obligation on the support schedules. Adjustments for the costs of medical insurance for the children, necessary child care and, if appropriate, college expenses are then added, and the resulting total child support obligation is divided between the parents according to the percentages of each party’s gross weekly income to their total combined gross weekly income. The non-custodial parent must pay his or her percentage share of the total child support obligation to the custody parent. The custodial parent is presumed to expend his or her percentage share of the total child support obligation on the child while the child is in his or her care. The Child Support Guidelines also recognize that a non-custodial parent who regularly exercises parenting time (visitation) with a child will also expend funds on the child while exercising parenting time. Thus, a non-custodial parent may be awarded up to a 10% discount on his or her child support obligation by regularly exercising parenting time. To get an estimate of a basic support obligation, try the Child Support Calculator.
The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate (higher or lower) from the support obligation determined under the Child Support Guidelines when it would be inequitable to apply the support obligation determined under the Child Support Guidelines. If the court deviates from the support obligation determined under the Child Support Guidelines, the court must explain in writing why a deviation is warranted. Except in rare circumstances, child support must be paid to the Clerk of Court by way of a court order requiring the employer to deduct support from wages.
Indiana courts grant custody rights to parents based on the best interests of the child. There is no legal presumption favoring one parent over the other. In determining the best interests of a child, the court will consider several factors including the age and sex of the child, the wishes of the parents and the child, the child’s relationships with parents and siblings, the child’s adjustment to home, school, and community and the mental and physical health of all persons involved. The court may order an investigation or evaluation of all persons involved by a custodial evaluator who will then report his or her recommendations to the court for the court’s consideration in determining child custody issues.
There are two types of custody rights that may be granted under Indiana law. “Physical Custody” is the term given to the parent who is responsible for the day-to-day care of a child. The parent not granted physical custody is entitled to reasonable parenting time (visitation) rights. “Legal Custody” refers to the authority and responsibility to make major decisions concerning a child’s upbringing, including a child’s education, health care and religious training. The court may award joint legal custody of a child or children to the parents. If joint legal custody is awarded, the parents will share equally in making major decisions concerning a child’s upbringing. An award of joint legal custody, however, does not mean there will be an equal division of the physical custody of a child.