I Want to File for Divorce, or My Spouse Has Filed for Divorce: What Should I Do?
If you want to pursue a divorce or your spouse has filed for divorce, the first thing you should do is hire a divorce attorney. Contact divorce attorney Chris Martindale today at 765-716-6213 or chris.martindale86@gmail.com. Consultations are always free.
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” – Loving v. Virginia (US Supreme Court)
Divorce addresses two very important parts of life: marriage and children. If you have legal issues related to divorce, you need a divorce lawyer to help you protect your precious rights and secure the best outcome possible for you. Often times, property and money are involved, which are also very important and significant matters. I understand that a divorce can run the full spectrum of emotion and can be a good, bad, or mixed experience. Divorce attorney Chris Martindale is committed to providing you with compassionate and respectful representation for whatever divorce legal issues you may face.
What is Divorce?
Divorce, also known as dissolution of marriage, is the legal act of terminating a marriage. Marriage is a legal relationship that creates legal rights and obligations. In Indiana, a marriage license issued by the State is required by law for a legal marriage to exist. Naturally, a legal process is required to terminate a legal relationship. In addition to terminating a marriage, divorce mainly addresses child custody and property division. Divorce can also address debts, spousal maintenance, a last name change, protective orders, and counseling.
The Start: How is a Divorce Initiated?
A divorce is initiated by one spouse filing a petition for dissolution of marriage with the Court and serving the other spouse with a copy of the divorce petition. A person does not need to prove a fault with their spouse, such as adultery or insanity, anymore to acquire a divorce, only that an “irretrievable breakdown of the marriage” has occurred. One spouse can file for divorce without the consent of the other spouse.
The End: What are the Ways to Dissolve a Marriage?
A dissolution of marriage will occur through a settlement agreement, a final hearing, or a combination of the two. It is very possible that the parties to a divorce will never see the inside of a courtroom. Mediation is very common with divorces and, often times, ordered by the court or mandatory by local rules. Parties are very much encouraged to come to a settlement agreement on their own with the help of divorce lawyers or a mediator. There is a sixty (60) day “cooling off” period beginning the date the petition is filed that must expire before the Court will hold a final hearing or accept a settlement agreement.
The Two (2) Main Issues: Property and Children
The two major issues addressed by a a divorce are property division and child custody.
Property
Indiana is a one pot, 50/50 state when it comes to property. The court will divide the property of the parties, whether:
- Owned by either spouse before the marriage;
- Acquired by either spouse in his or her own right
- (A) after the marriage, and
- (B) before final separation of the parties; or
- Acquired by their joint efforts. I.C. 31-15-7-4(a)
The court divides the parties’ property in a just and reasonable manner and can do so in a variety of ways, including:
- Division of the property in kind;
- Setting the property or parts of the property over to one of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;
- Ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or
- Ordering the distribution of certain benefits defined in IC 31-9-2-98 (pension or retirement benefits, disposable retired or retainer pay) that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.
The court starts out with the presumption that an equal division of the property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
- The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing;
- The extent to which the property was acquired by each spouse
- (A) before the marriage or
- (B) through inheritance or gift;
- The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children;
- The conduct of the parties during the marriage as related to the disposition or dissipation of their property;
- The earnings or earning ability of the parties as related to
- (A) a final division of property and
- (B) a final determination of the property rights of the parties. I.C. 31-15-7-5
Custody
There are two types of custody: physical and legal. Physical custody is where the child physically resides and exists, and legal custody is the ability to make major life decisions for a child (medical, religion, education, etc.). The best interests of the child is the standard used by the court to determine child custody, which sounds open ended and often is open ended when two good parents exist. Parents can share physical and legal custody, one parent can have primary physical custody (child resides and exists with one parent a majority of the time) and the non-custodial parent receives parenting time, or one parent can have sole legal custody.
In determining the best interests of the child for custody purposes, there is no presumption favoring either parent. The court considers all relevant factors, including the following:
- The age and sex of the child;
- The wishes of the child’s parent or parents;
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
- The interaction and interrelationship of the child with
- (A) the child’s parent or parents,
- (B) the child’s siblings, and
- (C) any other person who may significantly affect the child’s best interests;
- The child’s adjustment to the child’s:
- (A) home,
- (B) school, and
- (C) community;
- The mental and physical health of all individuals involved;
- Evidence of a pattern of domestic or family violence by either parent;
- Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter;
- A designation in a power of attorney of (A) the child’s parent or (B) a person found to be a de facto custodian of the child. I.C. 31-17-2-8
A child’s Primary Caregiver is the parent that has spent a majority of the time with the child and provided the most care for the child: this factor is a very important factor in determining physical custody and addressed by factor (4).
In determining whether an award of joint legal custody would be in the best interests of the child, courts consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. Courts also consider:
- The fitness and suitability of each of the persons awarded joint custody;
- Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
- Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
- Whether the persons awarded joint custody:
- (A) live in close proximity to each other; and
- (B) plan to continue to do so; and
- The nature of the physical and emotional environment in the home of each of the persons awarded joint custody. I.C. 31-17-2-15
These factors can also be used to determine joint physical custody.
Parenting Time
A parent not granted custody of the child is entitled to reasonable parenting time unless the court finds, after a hearing, that parenting time by the non-custodial parent might endanger the child’s physical health or significantly impair the child’s emotional development. Parenting time includes the days and times a child resides or is physically with a parent, overnights, and communications with children. The law and society want and encourage both parents to be as involved as possible with their children.
Parents can agree to a parenting time schedule or use the default schedule in the Indiana Parenting Time Guidelines (IPTG). Regular IPTG parenting time starts for children three (3) years old and up and includes alternating weekends, one mid-week evening per week for up to four (4) hours, and roughly half of all holidays. Non-custodial parents of children aged three (3) to four (4) receive up to four (4) non-consecutive weeks of parenting time during the year, and non-custodial parents receive parenting time of 1/2 of all summer vacations once the child turns five (5). All parents generally have the right to information regarding their children.
Child Support
The court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:
- The financial resources of the custodial parent;
- The standard of living the child would have enjoyed if:
- (A) the marriage had not been dissolved;
- (B) the separation had not been ordered; or
- (C) in the case of a paternity action, the parents had been married and remained married to each other;
- The physical or mental condition of the child and the child’s educational needs; and
- The financial resources and needs of the noncustodial parent. I.C. 31-16-6-1(a)
A child support calculation is performed to determine the amount of the child support obligation, and the following information is included in this calculation:
- Weekly gross income of both parents;
- Annual number of overnights for each parent;
- Number of subsequent children;
- Weekly amount of court ordered child support for prior-born children;
- Weekly amount of legal duty child support for prior-born children;
- Weekly amount of alimony or maintenance paid;
- Weekly amount paid for child care; and
- Weekly amount paid for child(ren)’s portion of health insurance premium.
In addition to a weekly child support amount, a child support order can address the child’s tax exemption, medical support, and educational support. Courts can order parents to pay for the child’s education in elementary and secondary schools and at postsecondary educational institutions.
A child support order must require either parent or both parents to provide medical support for the child through health insurance coverage if the health insurance coverage is available to the parent at a reasonable cost. Parents may be ordered to pay for special medical, hospital, or dental expenses necessary to serve the best interests of the child. Uninsured health care expenses for the child are divided between the parents in a child support calculation.
Courts consider the following when awarding the child’s tax exemption:
- The value of claiming the child as a dependent at the marginal tax rate of each parent;
- The income of each parent;
- The age of the child or children and the number of years that the child or children could be claimed as a dependent or dependents;
- Each parent’s percentage of the costs of supporting the child or children;
- If applicable, the financial aid benefit for postsecondary education for the child or children;
- If applicable, the financial burden each parent assumed under the property settlement in a dissolution proceeding;
- Any other relevant factors. I.C. 31-16-6-1.5(b)
A parent ordered to pay child support must have paid at least 95% of the parent’s child support for the calendar year for which the parent is ordered to claim the child as a dependent by January 31 of the following year. Both parents may be awarded the child’s tax exemption in alternating or specific years.
Post-Decree Issues
After the Court isses a Decree of Dissolution of Marriage, the property issue should be settled and a child custody determination will be ordered. However, this is not necessarily the end of the story for child custody related issues. Things can change over time. Often times, sections of the Divorce Decree are not followed or performed and can be addressed by the Court.
Child custody orders can be modified if:
- It is in the best interests of the child, and
- There is a substantial change in one or more of the statutory factors that the court may consider. I.C. 31-17-2-21(a)
Child support orders can be modified under two circumstances:
- Upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
- Upon a showing that
- (A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines, and
- (B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed. I.C. 31-16-8-1(b)
If you have any issues related to a dissolution of marriage case, contact divorce lawyer Chris Martindale today at 765-716-6213 or chris.martindale86@gmail.com.