Divorce Law Frequently Asked Questions
Questions about Filing for Divorce in Indiana
Q. How do I initiate a divorce in Indiana?
A. A Husband or Wife can initiate a divorce by filing a verified petition in any state/court in Indiana. A filing fee of $156 is required to be paid at the time of filing. There is no significant advantage to the initiating party.
Q. How long does it take to get a divorce in Indiana?
A. Indiana has a sixty day waiting period before the Judge can dissolve a marriage or sign an agreed decree dissolving a marriage.
Q. Do I need a lawyer to get a divorce in Indiana?
A. Technically, you do not need a lawyer to get a divorce. Documentation can be obtained at the local clerk’s office to process your case. However, many judges across the state discourage parties from resolving child custody related issues without legal representation. Furthermore, it is highly recommended that you seek legal representation when dealing with property/debt division in a dissolution action.
Q. Which party will get to stay in the marital residence during the pendency of the case?
A. There is no specific law that dictates who will get to stay in the marital residence while the case is pending. However, a party may petition the court for an order granting sole possession of the residence to him/herself. This petition can be filed and ruled upon at any time during the proceeding and is often addressed within the first 30-60 days after filing.
Q. Who gets custody of the child/children during the pendency of the case?
A. Either party may be granted temporary custody of the child/children while the case is pending. Ultimately, the court will conduct a final hearing (bench trial) at which time a final determination of custody is rendered.
Q. Do you need to have a specific reason to get a divorce in Indiana?
A. No. Any party can seek a dissolution so long as the party is willing to testify that the marriage is irretrievably broken and should be dissolved.
Q. What impact will a pre-marital relationship have on a divorce?
A. Generally speaking, pre-marital relationships are irrelevant to divorce proceedings. However, under some circumstances, one’s extra-marital affair may be a factor in a court’s ultimate determination of custody and property division.
Q: What is the law regarding child custody in Indiana?
A: Indiana recognizes three primary forms of custody. The first is legal custody. This is a reflection of who will make decisions for the children related to health, education, and religion. For the most part, most judges are likely to order joint legal custody at the conclusion of a divorce unless the non-custodial party demonstrates a complete inability to communicate with the party exercising custody of the child or the non-custodial party demonstrates a complete inability to make sound parenting decisions.
The second kind of custody is physical custody. This is a reflection of who has the child more than 50% of the time. In other words, who does the child live with more than half the time. This is form of custody that is most often litigated and leads to long drawn out divorce proceedings. The physical custodial parent is the parent that receives child support. It is possible for a non-custodial parent to receive child support, but extremely rare.
The third type of custody is shared physical custody. People often refer to this as “joint” or “split” custody. I believe the use of the words joint and split are confusing because, as I stated earlier, judges often order joint legal custody. Therefore, I prefer the use of the word “shared.” Essentially, this reflects a 50/50 division of the physical custody of a child. For example, one week with Dad and one week with Mom. This is the rarest form of custodial arrangements ordered by the court.
Q: How is child support determined in a child custody case?
A: Child support is driven by a formula that has been adopted by the Supreme Court and often referred to as the Indiana Child Support Guidelines. The primary factors that ultimately impact the child support figure are the gross incomes of the parties. Gross income figures are used unless one or both of the parties is self-employed. In this circumstance, the self-employed party may deduct from the income, his/her business expenses. The formula also takes into consideration the cost of health insurance associated only with the child; the cost of child care; and, the overnight credit the obligated parent receives for exercising overnights with the child. Of course, the more overnights exercised, the less one will pay for support. The formula takes into consideration a few other factors including, but not limited to, subsequent children and other support obligations.
Q: Are parents responsible for their children’s college expenses?
A: Generally, yes. The statute pertaining to college expenses in Indiana gives judges complete discretion to apportion expenses in any manner they wish. The typical approach is to require the child to pay one-third (1/3) and order the parents to share the remaining two-thirds (2/3) on a pro-rata basis. In other words, if the total college expense for a semester is $6,000, Mom’s weekly income was $600 and Dad’s was $400, the child would cover the first $2,000, with the Mom paying 60% of the rest ($2,400) and the Dad 40% ($1,600). The child will often be allowed to apply any grants, scholarships and loan monies to his/her one-third. College expenses are typically defined as room and board, tuition, misc. fees, and transportation.