Indiana’s divorce process—Part 2
This blog post is Part 2 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.
For information about the initial steps involved in Indiana divorce cases, see “Indiana’s divorce process- Part 1 (sections 1-5).”
6. Discovery
Once a divorce petition has been filed, either party may ask the other party for information or documentation about personal property or real estate, debts, income, financial matters, and child-related issues. This information allows parties to reach agreements about property division, custody, child support, and other issues related to the divorce and to be prepared for trial or mediation on these issues. Information may be requested in the form of written questions called “interrogatories” and “requests for admission,” which ask the other party to answer certain questions and admit certain things under oath, or “requests for production of documents,” which ask the other party to produce certain documents. Information may also be asked for in the form of a “deposition,” in which a party is asked questions by the other party or the other party’s attorney under oath, and the party’s answers are typed into a written record. If real estate, pensions, or a significant amount of personal property is involved, it may be necessary or advisable to have the property appraised by experts.
7. Continuances
Either party may request a continuance of a hearing. When a party requests a continuance from the Court, the party is asking the Court a reschedule the Court hearing. Motions for a continuance are generally discouraged. The party asking for the continuance must put the request in writing and file the request with the Court. The party requesting the continuance should attempt to contact the other party to find out whether the other party objects to having the hearing rescheduled and to determine new dates when both parties could be available for the hearing. The motion for a continuance should include any objection from the other party, as well as a list of alternative dates that are convenient for both parties.
8. Agreements
Parties can enter into agreements for property division, custody, support, and maintenance. Attorneys may help parties negotiate an agreement. Parties without attorneys may create their own written agreements that can be binding if signed by both parties. Negotiations may be necessary to reach a final settlement. Negotiations may be necessary to reach a final settlement. If an agreement as to all issues had been reduced to writing, the judge can approve the agreement and sign the final divorce decree as long as sixty (60) days have elapsed from the date the original petition was filed. A final hearing in court is not necessary if all issues are agreed to and the parties file the proper waiver with the Court, called a “Verified Waiver of Final Hearing.” Once parties have signed an agreement (often referred to as a Settlement Agreement) they are legally bound to the terms of the agreement unless the Court rejects the agreement. If the agreement involves children, a Child Support Worksheet and Health Insurance Program Worksheet (HIPW) must also be attached to the agreement.
9. Final Hearing
If parties are unable to reach an agreement through mediation or negotiation, the Court will schedule the case for final hearing. The parties may subpoena witnesses to testify. The dissolution of marriage becomes final as soon as the judge signs the final decree. Both parties have the right to appeal the final decree.
10. Division of Assets and Liabilities
The Court has the power to divide all of the parties’ property and debts. Property includes real estate, vehicles, personal belongings, jewelry, household furnishings, pensions and retirement plans, bank accounts, businesses, and any other item of value. The Court will consider all property that existed at the time of the filing of the divorce petition, regardless of whether that property was owned prior to the marriage, acquired by one spouse by inheritance or gift, or whether the property was jointly owned. How property is titled does not ultimately determine to whom it is awarded. The Court also has the ability to determine who is to pay debts that were acquired during the marriage or brought into the marriage by a party.
Under Indiana law, there is a presumption that an equal division of property and debts is fair and reasonable. There are, however, factors that can be considered to justify a change (called a “deviation”) from a 50/50 division. These factors include the following:
contribution of each spouse to the acquisition of property;
the extent to which property was acquired prior to the marriage or through inheritance or gift;
conduct of the parties during the marriage as related to disposition or dissipation (misuse or waste) of the property;
the economic circumstances of each spouse; and
the earning ability of the parties.
11. Maintenance
Maintenance awards (or spousal support) can be ordered only under very specific circumstances. Indiana has limited such awards to three types: 1) incapacity maintenance- for cases involving a spouse with a physical or mental incapacity; 2) caregiver maintenance- for cases involving a spouse who is unable to work because he or she is caring for the parties’ disabled child; or 3) rehabilitative maintenance- for cases involving a spouse who needs assistance upgrading skills or education, for a period not to exceed three (3) years, because his or her career has been interrupted for childcare responsibilities.
12. Child Custody
Legal Custody and Physical Custody
There are two aspects to a custody determination: legal custody and physical custody. “Legal custody” determines which parent has the authority to make the major decisions in the children’s life. Sometimes legal custody is awarded to only one parent. “Joint legal custody” means that the parents will share authority and responsibility for the major decisions concerning the children’s life, including the children’s education, health care, and religious training. An award of joint legal custody impacts how decisions are made regarding the children, but does not mean that the children will spend an equal amount of time with each parent.
Physical Custody, Share Physical Custody, and Split Custody
“Physical custody” refers to where the children spend their time. In determining which parent should have primary physical custody of the children at the time of the divorce, Indiana makes no presumption favoring one parent over the other. The Court will establish custody based upon the best interest of the children. In making that determination, the Court will consider these factors:
the age and sex of the child;
the wishes of the child and the child’s parents;
the child’s relationship with parents and siblings;
the child’s adjustment to home, the child’s school and the community;
the mental and physical health of all parties;
evidence of domestic or family abuse by one or both parents; and
evidence that another person was providing a significant amount of care for the child.
The parent who is not granted primary physical custody is entitled to “parenting time”.
Although Indiana does not have a specific legal category for joint or shared physical custody, the Court will often approve an agreed arrangement where the children will reside half of the time in each parent’s home. These arrangements sometimes involve the parents alternating the children between their homes each week. A shared custody arrangement will result in the children spending approximately 181-183 overnights in each parent’s home per year. When parents who have a shared custody arrangement complete the required Child Support Worksheet using the Indiana Child Support Calculator, they will need to choose which parent will be responsible for the children’s “controlled expenses.” Parents with multiple children may also choose to enter into a “split custody” arrangement. Under a split custody arrangement, each parent has primary physical custody of one or more of the children. When parents who have a split custody arrangement complete the required Child Support Worksheet using the Indiana Child Support Calculator, they should complete two separate Child Support Worksheets to reflect how the custody of the children is divided between the parents.
Appointment of GAL or Custody Evaluation
If there is a dispute over custody, then the parties can request that the Court appoint a Guardian Ad Litem (GAL) to make an investigation and recommendation to the Court. The parties may also request a custody evaluation by a professional. If there are allegations of danger to the children related to a parent’s mental health or substance abuse, the parties may request an order for psychological evaluation or drug testing of one or both parents.
In Camera Interview
Parties may request, and the Court can order, that the children attend an interview with the Judge so that the children can express their needs and wants. This type of interview is called an “in camera interview”. The Court may allow the parties’ attorneys to be present at the interview. If attorneys are present, the Court may record the interview, and the record may be used for purposes of appeal.
Counseling for Children
The Court can order the parents to obtain counseling for the children if it is needed. The Court can order the parents to participate with the children in counseling if necessary to the children’s best interest. If a parent has reason to believe a child is being abused or neglected by the other parent, he should immediately make a report to the Department of Child Services (DCS).
High-Conflict Divorces
In addition to the appointment of a GAL or custody evaluator, the Court may order the appointment of a Parenting Coordinator if the parties agree. The Parenting Coordinator serves as a neutral to help the parents cooperate and coordinate regarding the children. The Court can also order the probation department to conduct an investigation if there are allegations of domestic violence, drug abuse, criminal activity, or other fact based situations.
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