Navigating Divorce in Indiana:
Legal Steps and What to Expect
Understanding the process is the first step toward peace of mind. This guide explains how divorce works in Indiana — from filing to final resolution.
Disclaimer: This blog post 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. Brown Carrington, PLLC has many attorneys skilled in Indiana law, and we are here to help.
1. THE TERMINOLOGY
2. CAN YOU SAVE LAWYER FEES AND REPRESENT YOURSELF IN COURT?
Divorces can be expensive. Before deciding to file for divorce, people often wonder whether they can avoid the cost of hiring a lawyer by choosing to represent themselves in Court. In Indiana, a person who does not hire an attorney and chooses 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, for example, are available here, and Hamilton County’s local rules are available here), and the Indiana Rules of Evidence. Given the critically important issues at stake in almost all divorces (generally, children and money), hiring trained counsel is well worth the investment.
3. STARTING THE PROCESS
To start the case, one spouse files a Verified Petition for Dissolution of Marriage – also called a “divorce petition.” The petition must contain certain statements that are set out under Indiana law. To file a divorce case in a particular county, either spouse must have been a resident of Indiana for at 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 spouses until the 60-day 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. The term “provisional” refers to the period of time that the divorce is pending, which is between when a spouse files a divorce petition and when the judge signs the divorce decree.
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 until the divorce is finalized. This type of order can sometimes be obtained without a hearing.
5. DOMESTIC VIOLENCE PROTECTION ORDER
6. DISCOVERY
7. 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 who gets it. The Court also can determine who is to pay debts that were acquired during the marriage or brought into the marriage by either 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.
8. MAINTENANCE
Maintenance awards (or spousal support) can be ordered only under very specific circumstances in a divorce decree.
Indiana has limited such awards to three types:
1) incapacity maintenance- for cases involving a spouse with a physical or mental disability;
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.
9. 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” refers to where the children spend their time. If the children spend the majority of their time with one parent, that parent has “primary physical custody.” The parent who is not granted primary physical custody is entitled to “parenting time” which is discussed in more detail below.
Award of Custody
In determining 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.
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 GAL is a professional appointed by the court to represent and protect the best interests of a child, and is most often a trained attorney.
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, that parent should immediately make a report to the Department of Child Services (DCS). You can reach Indiana’s Child Abuse and Neglect Hotline 24/7 at 1-800-800-5556.
Parenting Coordination
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 party to help the parents cooperate and coordinate regarding the children.
10. Parenting Time
Indiana law refers to the time that a child spends with the non-custodial parent as “parenting time” instead of “visitation”. Indiana law provides that all parents are entitled to reasonable parenting time unless the Court finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.” The Indiana Parenting Time Guidelines (sometimes referred to as simply “The Guidelines”) establish rules, procedures, and schedule recommendations for parenting time.
11. CHILD SUPPORT
Child Support, Child Support Guidelines, and Child Support Worksheet
The Court will use the Indiana Child Support Guidelines to determine the amount of child support one parent will pay to another. The parties must provide the following information to determine child support:
1. Gross income of both parties;
2. Work related childcare expenses;
3. Health insurance costs for children;
4. The annual number of overnights that a child spends with each parent;
5. Whether either of the parents has children from another relationship (either before or after the current relationship); and
6. Whether one or more children are attending a post-high school educational program (referred to as post-secondary education).
The data is put into the Child Support Calculator. The calculator will determine an “income shares percentage” for each parent based upon a comparison of the incomes of the parents, and some of the factors stated above. The “income shares percentage” can be used by the Court to determine child support, as well as medical, college, and extracurricular expenses of the children. The Child Support Calculator will produce a Child Support Worksheet with a recommended weekly child support amount. A Child Support Worksheet must be completed and submitted to the Court. The Court may also make an order for the cost of extracurricular activities of the children, such as art classes, piano lessons, summer camps, etc. This is usually an agreement or order separate from the weekly child support payment.
Income Withholding and Other Child Support Orders
Unless an exception applies, Indiana law requires a Court to automatically issue an Income Withholding Order in all cases where one party has been ordered to pay child support. When the Court issues an Income Withholding Order, this means that the amount of child support that the party has been ordered to pay will be automatically withdrawn from the party’s paycheck. The amount withheld may also include amounts for child support arrearages (past child support obligations that the party has not paid).
12. MEDIATION AND OTHER WAYS TO SETTLE A CASE
Almost every Indiana court requires parties to try to reach an agreement that resolves the issues in their divorce before the court will allow the parties to proceed to a final hearing before a judge. Most of the time, the process of trying to reach an agreement occurs in the context of a “mediation”. During the mediation process, a neutral person called a mediator (who is also generally a trained attorney) works with the parties to help them broker an agreement, if possible. 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 passed 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, or unless certain rare circumstances apply. If the agreement involves children, a Child Support Worksheet (discussed in more detail below) must also be attached to the agreement.
Other ways to settle a case involve settlement conferences and binding arbitration. Your lawyer can guide you on the most appropriate settlement method for your particular case.
13. FINAL HEARING
If parties are unable to reach an agreement through mediation or negotiation, the Court will schedule the case for final hearing. At the final hearing, the parties may testify, subpoena other witnesses to testify, present documents and other evidence, and present oral arguments (typically through their attorney) to support their positions. 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.
Although Indiana’s courts and judges work hard to make the divorce process understandable and accessible for parties in this state, the divorce process can be complicated and the stakes high. The guidance of an attorney can make a critical difference in the outcome of your case. If you have questions about the divorce process in Indiana or need further guidance, please contact us to schedule a consultation with one of our experienced family law attorneys.
Written by: Samantha Huettner
Samantha A. Huettner is a Partner at Brown Carrington, PLLC, where she helps individuals and families navigate the complexities of family law with clarity and confidence. Drawing on her extensive background in civil and commercial litigation, Samantha brings a strategic and practical approach to every case. She’s also the co-author of Divorce and Coparenting: A Support Guide for the Modern Family (American Psychiatric Association) and has been featured in Forbes and Fortune Magazine.
Learn more about Samantha here.
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THE INFORMATION PROVIDED IN THIS POST IS FOR GENERAL INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. LAWS AND REGULATIONS VARY BY STATE, COUNTY, AND SPECIFIC CIRCUMSTANCES OF YOUR MATTER, AND THE INFORMATION PRESENTED HERE MAY NOT APPLY TO YOUR PARTICULAR SITUATION. ALWAYS CONSULT WITH A QUALIFIED FAMILY LAW ATTORNEY TO OBTAIN ADVICE TAILORED TO YOUR INDIVIDUAL CIRCUMSTANCES. REVIEWING THIS BLOG POST DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND THE AUTHOR, PUBLISHER, BARROW BROWN CARRINGTON, PLLC OR ITS ATTORNEYS. THE AUTHOR AND PUBLISHER ARE NOT RESPONSIBLE FOR ANY ACTIONS TAKEN BASED ON THE INFORMATION PROVIDED IN THIS BLOG POST.
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