Whenever I get a phone call from someone looking for a divorce lawyer, I almost always walk them through “Divorce 101” – a basic primer on the nuts and bolts of divorce in Indiana. (Shameless plug: Free same-day consultations – call us! 317-460-8969.) There are some basic facts and key terminology that you need to know if you are thinking about getting a divorce in Indiana.
Basically, the process looks like this:
1. Consult with an attorney. I highly recommend you speak with a lawyer before doing anything else, even if you will be filing your divorce yourself. Divorce is a big deal, and it’s not something to rush into headlong without some foresight, planning, and a bit of expert advice.
2. Filing. If you decide to hire a lawyer, she will prepare a number of documents for you, which will be filed with the court to get the process going. These documents include her Appearance, a Summons, and a Petition for Dissolution.
- Appearance: The document by which the attorney informs the court, and your spouse, that she is formally representing you. Once the Appearance is filed, the court will communicate directly with your lawyer. Also, if your spouse has a lawyer too, he or she will no longer be permitted to speak with you directly – he or she will have to go through your lawyer instead (to protect you from getting talked into things, or simply harassed by your spouse’s attorney).
- Summons: The document which formally informs your spouse that he or she is being sued for divorce. The Summons will provide all of the important information about what the lawsuit is over, who the parties are, what court the suit is in, what could happen if your spouse doesn’t show up for a hearing, etc.
- Petition: This is the document that actually asks the court to do something – in a divorce case, you are asking the court to dissolve your marriage, which is why the formal name for divorce is dissolution. In some states, the Petition has to state that your spouse did something wrong in order for the court to let you get divorced. But in Indiana, we are a “no fault divorce” state, which just means that all you have to tell the court is that the marriage didn’t work out and can’t be saved. The legalese term for this is irretrievable breakdown of the marriage. The Petition will also tell the court whether you and your spouse have children, and if so, where they are living and how old they are. And it will tell the court whether the wife is currently pregnant (if so, typically the court will not permit the divorce to be finalized until after the baby is born, for reasons that mostly have to do with paternity), and whether either spouse is currently deployed on a military tour of duty. The Petition will typically request a provisional hearing as well – but more on this later.
Typically, the date that these documents are filed with the court is your date of separation, but sometimes the date of separation can be an earlier date if, for example, the two of you have been living apart for a few months. The date of separation is very important, because in Indiana, if you have been married for more than a few years, generally all of your assets and debts will be “commingled” with your spouse’s – meaning that all that you own, and all that you owe, goes into one big pot called the marital estate, which will be divided when your divorce is finalized. The reason the date of separation matters is because everything after the date of separation is not commingled – it’s separate. So if you win the lottery, or if the Mrs. goes out and racks up $20k in credit cards, you’re in luck as long as it happened after the date of separation. If it happened before, you’ll be splitting your millions – or her debt.
3. Service. After the court has received your documents, your spouse will be served with an official copy of the Appearance, the Summons, and the Petition, as well as with an Order to Appear, if your lawyer asked for a provisional hearing. The most common way to serve a party in a divorce case is by certified mail, because it’s cheap and low-drama. But, if necessary (or if you just really want to), you could also send the sheriff to your spouse’s home or work, or have a private process server track him or her down at the bar or (my personal favorite) at their girlfriend or boyfriend’s house. Or if things are truly amicable with you and your spouse, you can just hand them their papers and ask them to sign something that says they got them.
4. Provisional Hearing. This is a hearing where the court will issue temporary orders (also referred to as “provisional orders” or “preliminary orders“) about things that need to be dealt with right away, like temporary custody and parenting time of the kids, temporary child support or spousal maintenance (kind of like alimony), temporary possession of the marital residence (your house) and the cars, etc. This hearing is usually critical when kids are involved, but because financial and other matters can be addressed too, it’s pretty common to have one even if you don’t have any kids. However, this hearing is by request only, so if your lawyer didn’t ask for one in the Petition, a provisional hearing will only be scheduled if your lawyer or your spouse asks for one. The orders the court issues will remain in place during the pendency of the dissolution, meaning the time period between filing and finalizing. If you and your spouse are able to come to an agreement about preliminary matters, however, the hearing can be vacated (cancelled), and your agreement can be submitted to the court instead. As long as the agreement looks alright to the judge, he or she will approve it, and it becomes an order of the court, which can be enforced the same way as other court orders.
5. Negotiations. After the provisional hearing or agreement, it’s time to get to work. This is the part of the process that usually takes the most time (and money). If you and/or your spouse really dig your heels in and refuse to give one another a single inch, then your lawyers might walk away with a bigger share of your net worth than either of you do. So it’s important to be as flexible and reasonable as possible, and to talk to your lawyer about what’s really important to you. If you really, really want the house, then consider being prepared to part with a chunk of your 401(k), etc. Don’t be so attached to a set of silverware you got from Bed Bath & Beyond 8 years ago that you rack up another $2,000 in lawyer fees while your attorney tries to negotiate for that item on your behalf. Keep a sense of perspective, and keep your priorities in mind. Maybe it’s alright that Wifey gets the whole DVD collection if she keeps her mitts off of your IRA. Maybe you can live with Hubby taking the Ford, if he takes the credit card debt too. Try to keep in mind what you are likely to be entitled to in court (usually roughly 50% of the net value of the marital estate), and talk to your lawyer about how to best structure the splitting of assets and debts so that you get what you really want, you can afford the debts you take on, and money isn’t wasted on carrying costs, taxes, fees, etc. The other main bone of contention, besides the money and the “stuff”, is almost always the kids. Custody battles can be loooooooong, and very expensive. I will do a separate post about these sometime soon, but again, keep in mind your true objectives: most of my clients really do want what’s best for the kids, and a good lawyer will help you keep that in mind (and try to keep your emotions somewhat in check) during this process. Repeat after me: The children are not pawns or bargaining chips. Offering up Junior to get a bigger hunk of that 401(k) is not going to earn you any points.
If, during this stage, you and your spouse come to an agreement about some or all of the divorce-related issues, then your lawyer will draft up a marital settlement agreement, which is a contract between the two of you that sets the rules for the rest of your lives, post-divorce. Everything goes into this contract: the house, the cars, the accounts, the life insurance, the kids, the child support. Often, my settlement agreements end up being 20+ pages long, but that’s because I can’t think of anything more important than making sure to be as clear and thorough as possible when dividing up all of your earthly possessions and debts, and determining what will happen with the kids. Make sure that you ask your lawyer about anything that doesn’t sound right, or anything you don’t fully understand, because this agreement, once it is signed by each of you and approved by the court, is very hard to change. Children’s issues (support, custody, visitation) can be modified under certain circumstances as a matter of law, but that usually involves going back to court and requires, usually, a substantial change of circumstances. Other things, like if you agreed to pay spousal maintenance until forever, will be almost impossible to change. So be thorough, be thoughtful, be patient, and get this document as close to perfect as you can. Trust me, it’s worth the money you will spend on lawyer fees at this stage, because if you don’t get it right, you are going to have to either live with it, or lawyer up again later to try to undo it. And that’s not a good situation.
If you and your spouse have come to an agreement on everything, then you’ll both sign the document and your lawyer will file it with the court. As long as all of the provisions about the kids are in the children’s best interest, and as long as the agreement is otherwise sound, the judge will approve it and you’re done! You can skip steps 6 and 7 because you are a negotiating genius. Congratulations, you are divorced.
6. Mediation (sometimes). If you and your spouse were not able to come to an agreement about anything, or even if you agreed on some things but not others, then you may be ordered to mediation. To put it very simply, mediation involves sitting in a room with your lawyer and some snacks, waiting for what seems like eternities, receiving an offer of settlement from your spouse and responding to it with a counter offer, and then more waiting. But mediation can be a very positive thing if the parties are both negotiating in good faith, the mediator is skillful in helping point out areas of possible agreement, and everyone remains as patient as possible. It is a lot cheaper to spend eight hours mediating your divorce than to spend eight hours litigating it, especially considering attorney prep time, etc. And people are more likely to follow their agreement than a court order, because they have invested in the process. If you’re able to reach an agreement, the mediator and the lawyer(s) will draft up a mediated settlement agreement which you will both sign. This will be filed with the court, and as with a marital settlement agreement, becomes a court order upon the judge’s approval. If that happens, you’re done! Cross the finish line, pass go, collect $200, you are DONE. But if not, then proceed to the final step.
7. Final hearing (rarely). A final hearing is an outcome that I personally prefer to avoid when possible, because no matter how much time the court sets aside for you, and no matter how great a job your lawyer does, you are still letting a relative stranger in a flowy black dress bang the gavel and make critical decisions about your stuff and your kids. But if you do have to go to a final hearing, make tripple sure that you have a good lawyer who fully understands what you want, what you don’t want, what you’re going to say at trial, and what your spouse is going to say (especially about you) at trial. Preparation is critical. Your lawyer should prep you on the questions that she is likely to ask you, and that your spouse or his/her lawyer will likely ask on cross-examination. Trial is very stressful, so do what you need to do to remain calm and keep a level head. The good news is that once the hearing is over, most of the time you will be divorced, even if the judge takes a couple of days or weeks to issue an order about how to divide the things and what to do with the kids. So, even if you and your spouse cannot agree on what color the sky is, much less whether the little ones should go to Montessori school and who gets which debts, the good thing is, he or she cannot force you to remain married to him or her.
I hope this helps you get a feel for the divorce process in Indiana. If you have any questions about this stuff, or if you’re ready to go ahead and start the process, give me a call. See if I’m the right person to represent you in this process.
Thanks for checking in,
Indianapolis Divorce Lawyer