The dissolution of a marriage, or divorce, is not usually an easy decision to make, and the process of divorce does not make it easier. In Indiana an action for dissolution of marriage can take anywhere from 60 days, the statutory minimum amount of time a dissolution action can take, or can literally go on for the rest of your life. This post is intended to discuss divorce, the process, and the potential results.
When people are contemplating divorce many times they also want to consider legal separation. We only recommend a legal separation if the parties have a religious objection to an actual petition for divorce. The reasons for that vary, but the main one, is that with a legal separation there is an annual requirement that each party continue with the separation by going to court to basically re-up for the separation. Meaning that every year, the parties have to be in a room together to renew their desire to stay legally separated. This can put a hindrance on getting on with life, be it moving to a new city or state, getting remarried, even dating. But if the parties agree to these restrictions, again, usually for strongly held religious beliefs, it is an option, just one that is rarely recommended.
So, if you don’t have particularly strong religious objections to divorce the process begins with a meeting with a lawyer. At this meeting the lawyer will ask questions that are very personal in nature about children, finances, living arrangements, etc. That is so when there is a hearing or an agreement she will not have to keep calling for a bunch of details later. That information is kept safe, and the attorney client privilege assures that it will only be known to the attorney and maybe a staff member that is also bound by the attorney client privilege.
Now you’re ready to start the court process. That begins with a petition for dissolution that will have to be signed by the party who is filing the petition. The party’s signature “verifies” the petition, and holds the petitioner liable for the truth of the statements in the petition. Once the petition is on file with the court you and your spouse are legally separated! See, it’s already made a part of the process, so a separate action for a legal separation is doubly unnecessary.
The petition, along with a summons will be served on the non-petitioning party, called the respondent in dissolution cases informing that person that they have been sued for divorce, the time and place of the first hearing, that failing to participate in the divorce process can be detrimental to their cause, and that if there is any need for a cross-petition that it can be filed with the same court.
If you have children a provisional hearing will be set for as short as a couple weeks from the date the petition is filed. That hearing may be waived if the parties agree to provisional orders. Provisional orders are meant to maintain the status quo as far as bills, possession of property, and to provide for the children, including setting up a child support and parenting time (visitation) agreement. In my mind the most attractive reason for doing a divorce petition rather than legal separation is that there is no need to renew every year, and you can live under provisional orders for the rest of your life if you just like being legally separated.
But say you are sure that you want a full divorce after the 60 day statutory minimum waiting period. There are some intermediary steps that need to be taken or you can’t finish the process. The first is the financial disclosure form. This is a lengthy form that must be completed by each party that attempts to ascertain everything knowable about each party’s finances, and did you notice I said ‘must?’ If one party refuses to complete the form the court can impose sanctions on that party in the form of a dollar amount or by a default judgment in favor of the other party. The second item that must be taken care of if there are children of the marriage is a seminar for parents who are divorcing. This seminar is a onetime class that will discuss the methods of dealing with the divorce within the family and with the children. At the conclusion of the seminar you will be given a certificate of completion that will be filed with the court when your divorce is finalized.
Then, when all that is done you can do one of several things; first you may want to try mediation. Mediation is a process where the parties come together with an uninterested third person who is certified by the State Bar as a mediator to try to get the parties to come to an agreement and avoid a final hearing. Secondly, if there are no disputed items in regard to property distribution, debt distribution, child support, or parenting time, you may be able to come to an agreement without the aid of a mediator. In either instance, when the 60 waiting period is up, and both parties agree that there are no disputed issues, you may file a waiver of the final hearing along with a written agreement on all issues, and you will be divorced. If there is disagreement about any of those issues however you will have to move the court to hold a final hearing. At that hearing both parties will be sworn in and asked questions regarding the disputed items, the judge may also ask some questions, and in the end the judge will issue a ruling in the form of a final decree that will be the order of the court dissolving the marriage.
Unfortunately you may not be finished with the court system after that. If there is an order of child support and parenting time, and either party fails to live by the order of the court, at any time in the future until the children are emancipated at age 19, either party can hold the other to abide by the terms of the court order through a contempt motion (called a Rule to Show Cause Motion in Indiana).
Another reason the parties may find themselves back in court after a final decree is if there is a significant change in circumstances for either party that should result in a modification of the final decree, such as loss of a job resulting in a 20%, or greater, disparity in income, a party’s relocation to a residence greater than 100 miles away, or a remarriage by either party, especially if there are subsequent born children to that new marriage.
This is intended as a general overview of the divorce process in Indiana. Each case is unique in its facts and circumstances, so chances are if you go through a divorce some of the information provided here will be a bit different for you. This should not be used as legal advice, or as a guide to anyone contemplating divorce as a self represented party.