Divorce

Overview of the Process

Divorce is a stressful time --- whether it is a decision you have made and have made peace with, a decision that your spouse has made that is still causing you great pain, or anything in between. In all the clients we've worked with, none of them have taken it lightly.  Understanding how divorce works can help lessen the stress.

Indiana is a 'no-fault' state which means that a divorce is granted for the simple reason of irreconcilable breakdown of the marriage with no need to explain to the Judge the reasons for the divorce.  Either spouse can ask for and receive a divorce, with no requirement that the other spouse need consent.  

Every divorce is different, but all go through some version of these four stages:

  1. Initial Filing

  2. Gathering and Sharing Information

  3. Resolution

  4. Wrap-up

If you are considering the Collaborative process for your divorce, please see our "Collaborative" article, as the process may look a little different.

 

Stage 1 -  Initial Filing

Either spouse can file for the divorce.  There is no tactical advantage to being the first to file--the only practical difference is that the one who files has to pay the filing fee (currently from $136 to $157 depending on the county).  

The initial documents to file include the Petition, where you ask ('petition') the court to dissolve your marriage; the Appearance, where you tell the court who your attorney is; and the Summons, which is a form document formally summoning your spouse to court.  

This stage is relatively straightforward procedurally, with relatively few decisions to make.  You need to decide if you wish to change your name and it's a good idea to discuss with your attorney whether you wish to request a Provisional Hearing, if you need to request a Temporary Restraining Order, or if there are any emergency issues.

Stage 2 - Gathering and Sharing Information

The days of Perry Mason are over.  By that, we mean that it's no longer acceptable to have 'gotcha' moments at final hearing when one side surprises the other.  Indiana law is very clear (and very serious) about requiring both spouses to disclose information to the other.  Each spouse has the responsibility to gather his or her own information--if you don't happen to have a recent bank statement for an account in your name, therefore, you will be responsible for contacting the bank and getting one.  No one enjoys sitting down to gather complete financial documentation, but it is an essential exercise.  Your attorney cannot advise you whether a settlement is a fair deal for you without complete information and no Court will be able to rule without complete information. There are three main ways that information can be shared.  

 

Informal Sharing.   With this method, you rely on the financial information available directly to you, and that provided informally by your spouse. If yours is a case where you do have great familiarity with the marital finances, or have suspicions of potentially hidden assets, this method will be insufficient.  

Financial Declaration.  Monroe County and many other counties have either a mandatory or an opt-in form that requires full disclosure of financial information, attachment of supporting documents, and signature under penalty of perjury.   Again, it is certainly not a fun time to sit down and complete a Financial Declaration, but it is essential.  If one account is accidentally forgotten, it can throw off the entire negotiations and even leave you open to allegations of fraud or deceptive behavior and cause you to lose serious credibility with a court.

Discovery.  If more detailed information is required that can be included (or than happens to be included) in a Financial Declaration, then your attorney will discuss with you whether discovery may be necessary.  'Discovery' refers to the set of tools that you can use to 'discover' information about the other side's case.  For example, you can use Interrogatories (lists of questions), Requests for Production of Documents (just what it sounds like), Requests for Admission, Requests for Physical or Mental Examination, or Depositions to gather information.  

Stage 3 - Resolution

The main issues that will need to be resolved in a divorce may include legal and physical custody of a child, parenting time, child support, a division of debts and assets, and/or spousal support. There are a host of ancillary issues that people also address in a divorce. These issues can be resolved, and a divorce decree issued, in several ways. 

The first is via informal negotiation, where one party (or attorney) drafts a marital settlement agreement and works to negotiate its terms with the other spouse (or attorney). In some cases, informal negotiation will be enough to resolve all outstanding issues related to the divorce.  We even have some cases where the spouses themselves do much of the negotiation and the attorneys step in to draft the final language.  Informal negotiation usually consists of back and forth communication between the parties and/or attorneys with proposals and counter-proposals, often in letter form, until the parties have a full agreement.  

For those cases that get stuck--whether on just one seemingly impossible-to-resolve issue or on many issues, mediation is a great option.  Kara Reagan is a registered Domestic Relations Mediator who can mediate others' cases, and we also take our own clients through mediation often.  At the end of a successful mediation (and most of them are), the parties and attorneys sign a 'Mediated Settlement Agreement' and submit it to the Judge for signature. Once the judge signs it, the divorce is final. If you are able to come to a full resolution of all issues using informal negotiation or mediation, then a court hearing is not necessary to finalize your divorce.

Finally, if no other means works, going to court will certainly allow you to reach a resolution.  While we would never describe court as fun, or something to schedule instead of that long-awaited trip to Disney World, we have good people as judges in our area.  They treat people with dignity in the courtroom, don't allow abuse by the other side or the other attorney (although questioning can get pretty pointed), and genuinely care about making the best decision they can.  That said, we almost always try other methods of resolving cases before going to court.  When you negotiate or mediate, you and your spouse are the ones making the decisions about your children, belongings, and finances.  When you go to court, it is entirely in the judge's hands.  At the end of the hearing, the judge often share some instructions with the parties about lessening conflict if there are children involved.  The judge almost always takes the case 'under advisement' which means that she or he will return to chambers and think about the evidence prior to issuing a decision.  Most area judges issue decisions in family law matters within anywhere from a week to a month, but there are rare cases where a decision can take months.  Once the judge signs the Decree of Dissolution of Marriage, the divorce is final.

Stage 4 - Wrap-up

After a divorce is finalized,  there are almost always some minor tasks to complete.  Many of these are tasks that clients can complete themselves, such as getting cars titled to the correct person.  Some are tasks that usually need an attorney's involvement, such as completing a QDRO (Qualified Domestic Relations Order) that divides retirement assets between the former spouses.  

Division of the Marital Estate

In addition to any relevant child-related issues, such as custody and child support, the marital estate must also be divided. Indiana law calls for an equitable division of the "marital pot," which consists of all assets and debts held by either party, regardless of when or how the asset or debt came about. 

The first task in dividing a marital estate is to define and value each asset and debt and to create a marital balance sheet, listing all of those debts and assets. Sometimes, the values and balances are not straightforward, and spouses may not agree on the value of a given asset or the appropriate balance to be used on a given debt. If this happens, for example, real estate may need to be appraised, small businesses may need to be professionally evaluated, or pensions may need to be valued by an Actuary. If the parties remain unable to agree on the values of their debts and assets, and if a court hearing is necessary, the judge will have the discretion to value the parties' debts and assets based on the evidence introduced at the final hearing. 

 

Indiana requires an equitable distribution of the marital pot (sometimes called the marital estate).  There is a presumption that an equitable division means an equal division (i.e. 50% of the total value of the marital estate to each spouse), but either spouse can argue for a different percentage division.  Some of the reasons a court can use for varying from an equal distribution include the following:

  • The contribution each spouse made to the acquisition of property, although domestic responsibilities are weighed as heavily as income-producing responsibilities. 

  • The extent of premarital assets.

  • The extent of gifted or inherited assets

  • Each spouse's economic circumstances, including whether it is appropriate for the custodial parent to retain the former marital home.

  • Whether either party "dissipated" marital assets.

  • The income and income-earning potential of the parties.

As with the other issues related to a dissolution of marriage, the parties are free to come to an agreement as to the division of their marital estate, and there are often advantages to doing so, such as the ability to be creative and maintain control over the outcome. If an agreement is not forthcoming, then each party will make arguments at the final hearing not only as to the value of the assets and debts, but also as to the factors relevant to how those assets and debts should be divided. 

Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to substitute for legal representation.