Things You Should Know

 

    Under Indiana law, a divorce proceeding is actually known as an action for dissolution of marriage. Indiana has “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. Rather, one (1) of the following statutory grounds must exist in order for the divorce to be granted: 

  •     Irretrievable breakdown of the marriage
     
  •     The conviction of either of the parties subsequent to the marriage, of a felony
     
  •     Impotence, existing at the time of the marriage
     
  •     Incurable insanity of either party for a period of at least two (2) years

     A divorce case is commenced by the filing of a Verified Petition for Dissolution of Marriage. However, certain residency requirements must be met in order to file a divorce case in Indiana. First, at the time of filing of the petition, either the Husband or the Wife must be a resident of Indiana (or stationed at a United States military installation within Indiana) for six (6) months immediately preceding the filing of the petition. Second, at the time of filing of the petition, either the Husband or the Wife must be a resident of the county in which the case is filed (or stationed at a United States military installation within this county) for three (3) months immediately preceding the filing of the petition.

     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 visitation 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 the date of the final hearing.

    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 “colling off” period. However, because of contested 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, visitation, and final property division.

     In making a determination of 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; 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. The Guidelines establish a weekly child support amount, factoring in the financial resources/income of the parents and the number of children of the marriage. An actual table is used to assist in the calculation, and the amount of child support established by the calculation using the table 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 child under Indiana law ceases at age twenty-one (21). However, contribution to college expenses can be required beyond this age.

    Similar to child support, the Indiana Supreme Court has adopted certain visitation 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 visitation (“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 les 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 the property; and

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

    It should be noted that the judge’s determination of custody, support and visitation at the time of final hearing is always subject to modification in post-decree proceedings, upon the filing of a proper petition and upon the statutorily required showing of changed circumstances. The judge’s determination of property division at final hearing, on the other hand, is in fact final and not subject to modification.

 

 

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Last modified: 03/25/13