Indiana Divorce Process—Part 1
This blog post is Part 1 of a multi-part series discussing the divorce process in Indiana. It contains general information designed to help persons thinking about or going through a divorce (or to help those who care about someone who is thinking about or going through a divorce). It is not legal advice and is not a substitute for hiring a lawyer. If you have specific questions about the law and how it applies to you and your family, talk to a lawyer.
1. The terminology
In Indiana, divorce is called “dissolution of marriage.” Although there are technically other grounds to dissolve or end a marriage, almost all Indiana divorces are filed on the grounds that there has been an “irretrievable breakdown” of the marriage. A marriage is “irretrievably broken” if either husband or wife says that it is and states in the divorce petition that no reconciliation is possible. One party does not need to prove that the other party is “at fault”- or did something wrong- to dissolve the marriage.
2. Can you save lawyer fees and represent yourself in court?
Yes, but proceed with caution. In Indiana, a person who does not hire an attorney and choses to represent him or herself in court is called “pro se,” or self-represented. The decision to represent yourself in court should not be taken lightly, because Indiana law holds a self-represented person to the same standard as a trained attorney. Self-represented persons are required to follow the Indiana Rules of Trial Procedure, the county’s local rules (Marion County’s local rules are available here, and Hamilton County’s local rules are available here), and the Indiana Rules of Evidence.
There are many good forms available to help self-represented persons on the Indiana Supreme Court’s website, accessible through our Resources page. Even if you complete the forms yourself, it may still be a good idea to have an attorney review the forms before you submit them to the court. There are also many excellent free or reduced cost legal services organizations available in Indiana for people who want an attorney to represent them in a divorce or family law case but cannot afford one. A listing of these organizations is available here.
3. Starting the process
To start the case, either the husband or the wife files a Verified Petition for Dissolution of Marriage– also called a “divorce petition.” The petition generally must state the residence of each party; the date the parties married and the date they separated; the names of any minor children and a request for custody, parenting time, and child support; a statement that the marriage is “irretrievably broken”; a request for division of the parties’ property; a request for a hearing in 21 days for any temporary orders the party wants; and a request for the return of the wife’s name, if she would like to go back to her maiden name. Either the husband or the wife must have been a resident of Indiana for at least 6 months and of the county where the divorce case is filed for at least 3 months before filing the petition.
A copy of the divorce petition and all other court papers must be sent to the other party. The party who filed the petition can ask the county clerk to serve the paperwork by sheriff or by certified mail. You will need a home or work address where the other party can be served. The term “served” means given a copy of the divorce paperwork.
The soonest that the court can order that the marriage is dissolved, or ended, is 60 days after the petition is filed. This 60 day period is called the
“statutory waiting period.” After the order is entered, the parties are legally divorced.
4. Provisional orders
Although the court cannot legally divorce a husband and wife until the statutory waiting period has passed, it can enter temporary orders for possession of property, custody, parenting time, child support, maintenance, and other issues after a provisional hearing. The term “hearing” refers to a court appearance. Either party may ask for a provisional hearing. If a party asks for a provisional hearing on custody or child support, the court should schedule the hearing no later than 21 days after the request.
At the time the divorce petition is filed, either party may also ask for a “temporary restraining order” to prevent both parties from transferring, hiding, or disposing of assets except for in the ordinary course of business or for the necessities of life. This type of order can be obtained without a hearing.
5. Domestic violence protection order
Domestic violence is a very serious matter. If you are filing for divorce because you fear for your safety or for the safety of your children, you may also consider requesting a protection order. Filing a petition for protection order is free. Either party may request a protection order. A protection order can only be issued if the court finds that injury, threat of injury, stalking, or a sex offense has occurred. “Stalking” means “a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened.” The protection order petition may request temporary orders as to custody, parenting time, child support, and the eviction of the abuser from the residence. The judge can issue a protection order without a hearing. If the court issues a protection order and the other person violates that order, he or she can be charged with a criminal offense called “invasion of privacy.” If a situation becomes violent or threatening, call law enforcement, whether or not you have a protection order. (Note: You do not need to file for divorce to get a protection order.)
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