Frequently Asked Questions Regarding Divorce And Family Law
How long will the divorce take from the beginning to end?
Indiana’s dissolution of marriage law requires a waiting period of 60 days from the date of the Petition for Dissolution of Marriage is filed with the Clerk’s office until there can be a final Decree of Dissolution of Marriage. Based upon Indiana law, the shortest length of time a divorce can take is 60 days. Most divorces will take longer than 60 days, as it takes time to gather information concerning the assets and debts of the marriage. If child custody is in dispute, the process can be quite lengthy, sometimes taking up to a year or more. Therefore, depending on the complexity of the case, the time from the date of filing until the conclusion varies greatly.
What are the different types of custody?
In Indiana, there are several terms which are commonly used to describe custody of the children:
Joint legal custody is when both the mother and father each have an equal say in three areas affecting the children, namely, the religious upbringing, education and healthcare choices. There is also
Joint physical custody which generally assumes the children will spend an approximately equal amount of time with each parent.
Physical custody is when the children primarily reside with one parent and the other parent exercises parenting time pursuant to either an agreement of the parties and/or court Order. Indiana has enacted Parenting Time Guidelines which the courts look to for assistance in determining the amount of parenting time, if the parties are unable to agree. Physical custody and legal custody can be combined in different ways:
- The parties can share joint physical and legal custody of the children, which means that the children spend equal time at which of the parent’s home, and the parents still consult one another when making decisions about education, healthcare and religion for the children.
- One party can have physical custody of the child, with both parties sharing joint legal custody, which means the child continues to live primarily with one of the parents, but the parents still consult each other and make joint decisions with regard to education, healthcare and religion
- One party can have physical and legal custody of the child, which means the child primarily lives with one parent and that parent makes all the decisions concerning education, healthcare and religion.
Is Indiana a 50/50 state?
An equal division of the marital assets is presumed to be a fair distribution. However, there are other factors the court is required to consider to determine whether or not it should deviate from an equal division of the assets.
If I vacate my home prior to filing for divorce, can I be charged with abandonment?
No. Indiana is a no-fault divorce state. This means that in order to get a divorce in this state, you do not have to prove to the court that either the husband or the wife is to blame for the breakdown of the marriage. Therefore, terms such as abandonment are no longer used. However, there are other considerations before you should leave or abandon your home.
If my children do not live with me, what type of visitation will I be entitled to?
In Indiana visitation is called “parenting time.” The type of parenting time a non-custodial parent will have is generally governed by the Indiana Parenting Time Guidelines, as set out by the Indiana Supreme Court. The parties are not bound by these guidelines, but are free to arrange any type of parenting time arrangements that works for their specific situation. However, if the parties cannot agree on a parenting time arrangement, the court will generally follow the Indiana Parenting Time Guidelines.
Will I have to testify in court?
Not necessarily. Many divorces are settled between the parties without going to court. Sometimes, either some or all of the issues cannot be resolved between the parties and their attorneys. When this happens, a court hearing will be scheduled and testimony will be presented to a judge so that a decision can be made with regards to the issues the parties could not work out.
If my spouse and I cannot agree on who will have custody of the children, what happens?
When custody is in dispute between the parties, a custodial evaluator is usually appointed by the judge. A custodial evaluator is a person who is either a social worker or a psychologist who interview the parties, the children, and any other relevant witnesses. Once the evaluation is complete, a report is submitted to the judge for review. The judge may use this evaluation report, in addition to other evidence that the parties present, to help make a determination as to where the children should live. In addition, the court may appoint a guardian ad litem to represent the children’s interest.
How much child support will I receive or pay?
Child support is usually dependent upon the gross weekly income of both parents, taking into consideration such things as: work-related child care, health insurance premiums and the number of overnights the children spend with each parent. Child support is determined using a formula created by the Indiana Supreme Court called the Indiana Child Support Guidelines. Child support is usually paid by way of an Income Wage Withholding Order. This means the child support is withheld from the support payer’s paycheck, processed by the state, and is then forwarded to the custodial parent. If you would like to run a Child Support Worksheet, click on the link provided on our website which will take you directly to the Indiana Supreme Court’s website where you can use the on-line Child Support Calculator.
If I do not have custody of my children, am I entitled to have access to their school and medical records?
Yes. Parents, regardless of their custodial standing, care entitled to have full access to their child’s school and medical records, unless otherwise ordered by a court. Sometimes schools and/or medical practitioners are hesitant in giving information to a non-custodial parent, and generally a quick telephone call from that parent’s attorney will resolve the situation.
How much will my divorce cost?
The cost of a divorce will vary in each case and will depend upon the parties, the issues and how much each party wants to litigate the matter. The more the parties can agree upon, the less need for attorneys and, therefore, lower attorney fee costs. However, the more the parties disagree, especially with regards to child custody, the more a divorce will cost. Other factors such as complex assets and or debts, or issues that need more involved investigation, will affect the cost of the divorce. In addition to attorney fees, there may also be expenses for custodial evaluations, home appraisals, pension evaluations, and other expert opinions as to asset values.
Do I need to have my own attorney to represent me in the divorce or can I use my spouse’s attorney?
Pursuant to the Rules of Professional Conduct, one attorney cannot represent both parties in a divorce action. It is not required that you have your own attorney to represent you in a divorce action and it is possible for one attorney to draft a final settlement agreement for both parties to sign. Be aware, that the job of an attorney is merely to protect the interest of his/her own client and is not to protect the party without counsel. It is your choice whether or not you hire your own attorney, but it is strongly recommended that each party retain counsel.
How does the court decide who gets the children?
The court hears evidence which may include testimony from not only both parents, but from third persons as well. Quite often, the Court will appoint either a guardian ad Litem or psychologist to prepare a recommendation to the Court. Ultimately, the court will review all the evidence, the demeanor of the parties and will make decision based on the best interests of the child/children. The Court can, but usually will not speak to the children. If the Court does speak to the child/children, it is usually done in the Judge’s chamber.
What happens to custody when one parent needs to relocate?
Indiana law now provides that a relocating parent, even the non-custodial parent, must file a Notice of his or her intent to relocate. When the custodial parent wants to relocate, the relocation may set into motion a request for a change of custody.
How is the amount of child support determined?
Indiana has a formula to determine child support. The gross weekly income of both parents is put into the formula along with other information, including the number of other children which either parent may have, the number of overnights the child or children stays with each parent, the amount of work-related child care expenses and the cost of health insurance premiums for the child/children. The process may seem simple at times, but can also be quite complicated depending upon the type of income the parties have.