Divorce

 
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INDIANA DIVORCE OVERVIEW

             Under Indiana law, a divorce proceeding is actually known as an action for dissolution of marriage.  Indiana has so-called "no fault" divorce, which means that neither party need show fault on the part of the other in order for the divorce to be granted.  There are several statutory grounds for divorce, the most common of which is “irretrievable breakdown of the marriage”. 

            A divorce case is commenced by the filing of a Verified Petition for Dissolution of Marriage.  Frequently, additional pleadings re also filed when the divorce case is commenced, such as requests for Restraining Orders and requests for the scheduling of a provisional hearing, which is the initial hearing in a divorce case.

            The spouse filing the divorce case is known as the “Petitioner”, and the other spouse is known as the “Respondent”.

            At the time a divorce case is filed, a one (1) time filing fee must be paid to the Clerk of the Court. The amount of the filing fee varies depending on whether the Respondent spouse is to be served with the divorce papers by certified mail, or by Sheriff. The cost of Sheriff’s service is slightly more than the cost of service by certified mail.  The filing fee is intended to cover the costs of the Clerk’s processing of the divorce paperwork throughout the course of the divorce case.

            In order to file a divorce case in Indiana, at least one (1) of the spouses must have been a continuous resident of the State of Indiana for at least six (6) months immediately preceding the divorce filing, and must also have been a continuous resident of the county in which the divorce is filed for at least three (3) months immediately preceding the divorce filing. 

            In most divorce cases in Indiana, a provisional hearing is held within three (3) weeks of the filing of the Verified Petition for Dissolution of Marriage.  This is particularly important if the divorcing parents have children because at provisional hearings the issues of custody, support, temporary maintenance and parenting time will be considered, as well as the issues of temporary use and possession of marital property and payment of various marital bills. The order resulting from the provisional hearing is called a "Provisional Order" and generally remains in effect until a Decree of Dissolution of Marriage is entered by the court.

            A final hearing cannot occur in a divorce case in Indiana until sixty (60) days have passed after the date of the filing of the Verified Petition for Dissolution of Marriage. This is the so-called statutory "waiting" or "cooling off" period.  However, because of congested court calendars, even fairly simple divorce cases are not finalized for several months after initial filing, with more complicated cases pending much longer.  Among the issues considered at final hearings are custody, support, parenting time (formerly “visitation”), and final property division. If the divorcing spouses reach a written agreement resolving all issues, the divorce can be concluded without a final hearing.

            “Joint legal custody” is an arrangement whereby both divorcing parents share authority and responsibility for the major decisions concerning the child’s (or children’s) upbringing, including education, health care, and religious training. Joint legal custody is different than “physical custody” and does not require an equal division of physical custody of the child (or children). Joint legal custody arrangements are becoming much more common in Indiana, even in cases where both parents may not agree to joint legal custody.

            “Physical custody” involves the determination as to the parent with which a child (or children) should live. “Shared physical custody” is an arrangement whereby the child (or children) lives part of the time with one (1) parent, and part of the time with the other parent, although not necessarily on an equal basis.

            In making a determination of physical custody at the time of final hearing in a divorce case, Indiana law requires that the presiding judge enter a custody order which is in the best interests of the child or children. There is no presumption under the law favoring either parent, and the judge is required to take into account all relevant factors, including the following:

·         The age and sex of the child

·         The wishes of the child's parent or 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:

            a)   the child's parent or parents;

            b)   the child's sibling(s); and

            c)   any other person who may significantly affect the child's best interests.

·         The child's adjustment to the child's:

            a)   home;

            b)   school; and

            c)   community.

·         The mental and physical health of all individuals involved.

·         Evidence of a pattern of domestic violence by either parent.

             In making a determination of child support at the time of final hearing in a divorce case, judges generally adhere to the Indiana Child Support Guidelines which were adopted by the Indiana Supreme Court a number of years ago, and which have been amended several times since, most recently effective January 1, 2010.  These Guidelines are based upon a “Income Shares Model” and establish a weekly child support amount, factoring in the weekly gross income of the parents, the number of children of the marriage, the cost of work-related childcare and health insurance, as well as the number of overnights the children spend with the non-custodial parent per year. A Child Support Worksheet taking all these factors into consideration results in a weekly child support calculation that is presumed under the law to be appropriate. The judge may, however, in certain circumstances deviate from the Guidelines. Subject to certain exceptions, the duty to support a child under Indiana law ceases at age twenty-one (21).  However, contribution to college expenses can be required beyond this age.

             In most instances, the divorce court judge requires child support to be paid through the Clerk of the Court, or through the state’s ISETS program, where computer records are kept as to the date and amount of each support payment made. Frequently the divorce court also requires that child support payments be deducted directly from the payor parent’s paychecks via an Income Withholding Order.

             Similar to child support, the Indiana Supreme Court has adopted the Indiana Parenting Time Guidelines, which are presumed to be appropriate for most divorce cases involving minor children.  The Parenting Time Guidelines became effective in Indiana in the spring of 2001.  Prior to this, many counties within the state, including Porter County, had adopted their own recommended visitation guidelines. The Parenting Time Guidelines contain detailed recommendations as to parenting time for a variety of circumstances, taking into consideration the age of the children and the distance between the residences of the divorcing parents.  The Parenting Time Guidelines are based upon the premise that it is usually in a child's best interests to have frequent, meaningful, and continuing contact with each parent.  The divorce court judge has discretion to grant more or less parenting time to the non-custodial parent than is recommended by the Guidelines, depending on the circumstances of the particular case.

             At the time of final hearing in a divorce case, Indiana law requires the divorce court judge to divide all of the property of the parties, including all property owned by either spouse prior to the marriage and all property acquired during the marriage.  Vested pension benefits are included as marital property.  The judges determination of property division must be "just and reasonable", and there is a presumption that an equal division of marital property between the parties is just and reasonable.  However, the judge does have discretion and can deviate from an equal property division if convinced that such a deviation is appropriate after taking into consideration the following statutory factors:

 ·         The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

·         The extent to which the property was acquired by each spouse:

                  a)   before the marriage; or

                  b)   through inheritance or gift.

·         The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

·         The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

·         The earnings or earning ability of the parties as related to:

                  a)   a final division of property; and

                  b)   a final determination of the property rights of the parties.

             The divorce court judge's determination of custody, support and parenting time at the time of final hearing is always subject to later modification in post-decree proceedings, upon the filing of a proper petition and upon the petitioning party meeting the statutory burden of proof required for the requested type of modification. The judge's determination of property division at final hearing, on the other hand, is in fact final and not subject to modification, except in the event of fraud. 

             Divorcing spouses in Indiana are required by state law to complete and exchange Financial Declaration Forms, which is a disclosure of incomes, expenses, and property owned. Divorcing Porter County spouses with children are required by Local Rule to attend the TransParenting program. Both of these requirements must generally be fulfilled prior to the divorce case being finalized.

             There are currently two (2) divorce courts in Porter County, both of which are located in the old courthouse in Valparaiso. Katherine R. Forbes and James A. Johnson are the Porter Superior Court Magistrates who preside over the vast majority of Porter County divorce and post-divorce cases.

 

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Last modified: 03/25/13