I hope this information regarding the dissolution of marriage is helpful as you explore legal representation to assist in your decision. When you hire Jennifer Jones Auger, we will do everything possible to ensure that you have a favorable outcome in your case. The following document is to meant to give you some general information about family law cases and how they are tried in Indiana, but is not meant to give specific legal advice in your case, as all family law cases are very fact sensitive.
OVERVIEW OF INDIANA FAMILY LAW
First, Indiana is what is called a “no fault” divorce state. This means that, whereas some states maintain fault based divorce for such conduct as adultery, drug abuse, violence, etc., Indiana is not one of those states and in fact, with respect to the issue of divorce itself, misconduct, other than dissipation of assets, is generally not admissible in Court. Therefore, in order to obtain a divorce in Indiana, you merely have to assert that there has been an irretrievable break down of the marriage and the courts must grant your dissolution of marriage, whether the other spouse agrees or not. There is a mandatory sixty (60) day waiting period from the time you initially file for divorce (by filing a Verified Petition for Dissolution of Marriage) before the Court can actually grant your divorce. However, it is important for you to know that unless you and your spouse agree to all of the issues pertaining to the divorce, divorces rarely become final within the sixty days and can take a substantial amount of time to resolve.
When a divorce is filed, five issues must be determined. First, the parties or the Court must value the” marital estate” and then decide how to divide it. Second, if you have children with your spouse, the issues of custody, parenting time and child support must be determined. The “marital estate” consists of all property owned by you or your spouse prior to your marriage and all property acquired by you, your spouse, or jointly while you were married, regardless of whose name individual items are titled. The Court then subtracts all of the liabilities of either party and the joint liabilities of the parties to determine a net value of the marital estate. While the Court is charged with dividing all of these assets between the parties, arguments can be made to set aside as separate property (property not to be divided in the marital estate) assets owned by either party prior the marriage or assets gained by gift or inheritance.
Once the Court determines the value of the marital estate, there is a presumption in Indiana that there will be an equal division of the estate. However, either party can ask for a deviation from the presumed 50/50 split, for instance where there is a disparity in earning capacity between the parties or if one party has left the workforce for a substantial period of time in order to take care of the parties’ home and/or children. After the Court determines a percentage that each party should receive of the marital estate, the Court is then tasked with assigning items of personal and real property to the parties, as well as assigning them debt.
Please remember that an equal division of assets does not mean that each party will get half of each asset; it means that each party should receive half of the value of the overall marital estate. After the marital estate is divided, issues of custody, parenting time and child support are reviewed. There are several different custodial arrangements available. Legal custody refers to decision making and designates which party is responsible for making the major decisions concerning the children’s upbringing. Joint legal custody is a legal designation that refers to the situation where both parents are equally responsible for the major decisions concerning the children’s upbringing, typically education, health care, and religious upbringing. The parties can either have joint legal custody, or one or the other parent will have legal custody and make the decisions concerning the children’s upbringing.
Courts also make findings as to physical custody, which is separate from legal custody. Physical custody generally refers to the parent with whom the children spend the majority of their time. To help you understand this concept, think of a spectrum – on one end of the spectrum is the situation where the parties share joint legal and physical custody, and are equally responsible for the decisions concerning the children and the children spend roughly the same amount of time with each parent. This generally is only feasible where the parties are able to put aside their personal differences in order to work together for the best interests of their children.
At the other end of the spectrum is the situation where one parent has legal and physical custody and is responsible for making the decisions concerning the children and the children spend the majority of their time with that parent. In the middle of the spectrum is the situation where the parties share joint legal custody but one parent or the other has primary physical custody. In other words, the parties are committed to raising the children together, but the children will reside primarily with the physical custodian.
On top of custody, parenting time needs to be established for both parents. Parenting time refers to who is to have the children on any given day, and at any given time. It is always to good to come to a parenting time plan that incorporates the needs of your particular family. You may note that these parenting time plans allow for both parties to have significant time with the children. There is an abundance of research that suggests that children from divorced families thrive when they have two active and involved parents in their lives who are able to keep the children out of their personal conflict.
Finally, child support must be established. Child support is income driven, and is determined in large part by the parties’ income and their proportionate share of the parties gross income. The paying party will receive a credit for the number of overnights that party enjoys with the children. The Indiana Child Support Guidelines also take into account work related daycare expense and insurance expense for the children. You may run your own child support calculation on the Indiana Supreme Court website, located at https://mycourts.in.gov/csc/parents/.
HOW YOUR CASE WILL PROCEED
In order to get your case initiated in the Court, we will file a Verified Petition for Dissolution of Marriage. Depending on the facts of your particular case, we may also need to ask the Court for a Provisional Hearing. A Provisional Hearing is generally a fairly short hearing in which we present evidence pertinent to issues of temporary custody, parenting time, child support, possession of the marital residence, and identifying who will be responsible for paying which bills. In Johnson County, you are generally limited to twenty (20) minutes for this hearing; however, we may ask for additional time from the Court. Basically, this hearing will help everyone determines the rules by which they will abide while the divorce is pending.
Additionally, anything that the Court orders in the Provisional Hearing is always modifiable Once the Petition for Dissolution is filed, we will engage in the “discovery” period. During this time, we seek to “discover” pertinent facts about your case. We will do this in several ways. First, you can help yourself by gathering your tax returns for the past five years, payoff information on any liabilities, and valuation figures for all significant assets you own. If you provide health insurance for your children, we will need documentation you’re your human resources department as to the premium you would pay for individual insurance, and the premium you pay for you and the children and the premium for you, your spouse and the children.
Additionally, I will send Interrogatories and Request for Production of Documents to your spouse. Interrogatories are a series of written questions which your spouse is required to answer in writing under oath. We send these for several reasons: 1) to try to determine where we have agreement and disagreement; 2) to value the marital estate; 3) to determine child support amounts; and 4) to nail down your spouse on their anticipated testimony. We also have the ability to send Requests for Production of Documents to third parties, such as employers, banks and financial institutions. This helps us to determine income information and ferret out assets.
While we are very good trial lawyers, we are limited by the facts of the case. It is veryimportant, especially in custody and parenting time disputes, that you keep a detailed log/journal as to behaviors and comments of your spouse and children. If you are not living together, keep accurate records of when your spouse has parenting time, events they attend or do not attend and communication they have with the children. Obtain cell phone statements to document phone calls and keep and download text messages, and Instagram, Facebook and other social media accounts.
STAY OFF OF IT. If you must use it, you should absolutely refrain from making any comment which anyone may interpret as being negative toward you spouse or any significant other they may have in their life. Always stay positive if you must post things on social media.
NEVER EVER MENTION YOUR CASE IN SOCIAL MEDIA.
Alternate Dispute Resolution
In most counties, anytime any party asks for a contested hearing (in other words, you are unable to come to an agreement with your spouse or ex as to all of the outstanding issues), the Court will order the parties to participate in Alternate Dispute Resolution, otherwise known as ADR. Basically, ADR is an opportunity for the parties to resolve their dispute by agreement prior to using the Court’s time. This generally takes the form of either mediation or arbitration. Mediation is a very informal process.
First, we will have to select a mediator. In private mediations, we can usually agree on the mediator. A mediator is generally a family law lawyer who has specialized training in dispute resolution. Keep in mind that you will have to pay the mediator an hourly rate. Unless you are participating in a subsidized program offered by several counties, mediators generally charge hourly rates in the $200 to $250 per hour range which is generally equally divided by the parties. Additionally, mediators generally require a $300 deposit by each party. After we agree on mediator, we agree on a mediation date. Prior to mediation, I will submit a confidential mediation statement to the mediator outlining the facts of the case, what we want, and any insight I may have as to how to they may be able to accomplish that. On the day of mediation, we will go to the mediator’s office at the appointed time. You and I will be in one room and your spouse or former spouse will be in a different room with their attorney, if they have one. You generally will not see the opposite side on the day of mediation. The mediator generally begins with the party who filed first, and will have a very informal discussion with that party to get a sense of the case. The mediator will then go back and forth between the parties and attempt to hammer out an agreement. Keep in mind that in any negotiation, you generally need to give up something in order to get something. Generally, I like mediation for several reasons. First, it takes risk out of the equation. Any time a matter is litigated in Court, you run a risk that the judge will dislike you for whatever reason, that they had a fight with their spouse that morning and are distracted by thoughts of that argument, are sick and unable to pay attention to the evidence, have had their own divorce and are predisposed to fathers or mothers, as the case may be, and many other factors of which we may or not be aware.
When it comes to matters of great importance, I personally like to remove risk from the equations.
Mediation also allows you find creative solutions to the problems keeping you from coming to an agreement. You can come to create parenting time plans that incorporate and acknowledge work schedules and that ensure safety measures if need be without third party supervision, which can be awkward for children and expensive for adults. Courts are often so overloaded that they do not take a great deal of time to consider how to be creative in solving families’ problems.
Third, I feel that people are more likely to stick to orders that are actually agreements – they have some responsibility and “buy in” and will work harder to make it work. Finally, even though you are paying a mediator an hourly rate, it is generally still much cheaper than a contested hearing. I usually spend between one to three hours preparing for mediation. On the other hand, I will generally spend between one to three hours preparing for each hour of a contested hearing. Hence, if we plan a full day hearing, I will generally spend between 8 to 24 hours preparing for that hearing. If we do mediate your case, keep in mind that it is often a very long, very boring to some extent (there will be a lot of “down” time while the mediator is talking to the other side) and very emotional day. I know. I have been there. While I always remind people that nothing bad can happen in mediation because the worst thing that can happen is we do not come to an agreement, we are generally dealing with very emotional issues in which people have been hurt and children’s lives are being determined.