Guide to Divorce and Custody in Indiana
Divorce and child custody are among the most challenging aspects of family law, particularly in Indiana. Navigating these legal waters can be daunting, especially for those unfamiliar with the process as a whole. This guide will cover the laws regarding both divorce and custody in Indiana and provide readers with some background on what to expect from custody proceedings. Understanding these elements of a divorce is crucial, as they profoundly impact the lives of families undergoing these changes. We will also highlight the indispensable role of legal counsel in these scenarios, ensuring that individuals are well-informed and prepared for the legal processes ahead.
If you are considering getting a divorce in Indiana, or need assistance filing for divorce, do not hesitate to contact our Indianapolis office today. The Indiana divorce lawyers at Keffer Hirschauer LLP have extensive experience representing individuals through every stage of divorce proceedings. Whether you are facing an uncontested divorce or need guidance as you work through a complex and contentious divorce in Indiana, we can provide a listening ear and a helpful hand.
To speak with an Indianapolis divorce lawyer today, call 317-857-0160 or complete our online contact form to schedule a free consultation. With our attorneys at your side, you can be confident that your case is in trustworthy, professional hands.
Indiana’s Divorce Laws
The process of getting a divorce in Indiana begins with a clear understanding of the state’s divorce laws. These laws set the framework for how divorces are processed, including the grounds on which a divorce can be filed, the procedure for filing, and the principles governing the division of property.
Grounds for Divorce: Indiana is a “no-fault” state, meaning that the only ground required for divorce is an irretrievable breakdown of the marriage. However, under Indiana Code 31-15-2-3, certain conditions like impotence at the time of the marriage, felony conviction, or incurable insanity for at least two years can also be cited.
Residency Requirements: As stated in Indiana Code 31-15-2-6, the residency requirements to file for divorce in Indiana are as follows: at least one spouse must have been a resident of the state for six months and a resident of the county for three months. In the case of a military divorce in Indiana, at least one spouse must have been stationed at a US military installation in Indiana for six months and stationed within the county where the petition is filed for three months.
Filing Process: The divorce process begins with the filing of a Petition for Dissolution of Marriage that meets the requirements set forth in Indiana Code 31-15-2-5. This petition must be filed in the Circuit or Superior court where the petitioner resides.
Appearance and Summons: Once the petition is filed, the petitioner will also need to file an appearance with the court and as provided in Indiana Code 31-15-2-8, and serve their soon-to-be ex-spouse with it and a summons.
Waiting Period: As required under Indiana Code 31-15-2-10, a couple filing for divorce will need to wait at least 60 days before the divorce can be finalized. During this time, the couple can begin to work on coming to an agreement on matters like child custody, parenting time, child support and the division of their marital assets.
Summary Dissolution Decree: If 60 days have passed since the petition was filed, and the couple is in complete agreement regarding all matters of the dissolution, the court may elect to enter a summary dissolution decree without holding a final hearing. To achieve this, Indiana Code 31-15-2-13 requires the couple to sign and file verified pleadings with the court stating that there are no contested issues between the two parties and a written agreement has been made.
Final Hearing: if 60 days have passed since the petition was filed, but the couple is not in complete agreement regarding all matters of the dissolution, the Court may call a final hearing on the dissolution. As provided in Indiana Code 31-15-2-15, the court shall consider evidence from both sides and either issue a dissolution decree or continue to the matter and order the parties to seek reconciliation (which is quite rare). The dissolution decree may include final orders on matters like child custody, child support, parenting time, spousal maintenance, and division of property.
Indiana is not a 50/50 divorce state. Instead, courts follow the “equitable distribution” model for property division. This means the court divides marital property in a manner that is fair and equitable, but not necessarily equal. Factors such as each spouse’s contribution to the marital estate, economic circumstances, tax consequences, and conduct during the marriage are considered.
Under Indiana Code 31-15-7-4, property that is considered to be part of the “marital pot” includes property owned by either spouse before the marriage; acquired by either spouse in his or her own right after the marriage and before the final separation of the parties; or acquired by the both the parties as a joint effort. When dividing the property, the court may simply choose to divide it in kind or set the property (or parts of the property) over to one of the spouses and require either spouse to pay an amount that is just and proper. The court may also order the sale of the property and divide the proceeds of the sale.
Indiana’s Child Custody Laws
Divorce and Custody in Indiana often go hand-in-hand. In fact, it’s not uncommon for child custody matters to take center stage in divorce proceedings, especially when considering the emotional and personal implications of the eventual outcome. Given this, it’s vital that any parent who is considering getting a divorce understands the difference between the various types of child custody in Indiana; how custody is determined; and the legal implications of child custody orders.
When a parent is granted legal custody in Indiana they have the right and responsibility to make major decisions about their child’s life. This could include decisions about healthcare, religion, education, etc. In regard to a custody order following a divorce, courts may award both parents legal custody (joint legal custody) or simply award legal custody to one parent (sole legal custody).
When one parent is awarded sole legal custody, they can make decisions about the child’s upbringing without permission or consideration of the other parent. However, when two parents are awarded joint legal custody, they would have to cooperatively make decisions about the child’s life.
When deciding whether or not to award two parents joint legal custody of a child, Indiana Code 31-17-2-15 requires the court to consider the following factors:
- The fitness and suitability of each of the persons awarded joint custody
- Whether the persons 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 wishes of children ages 14+
- Whether the child has a close and beneficial relationship with both persons
- Whether the persons awarded joint custody live in close proximity to one another and plan to continue to live in close proximity
- The nature of the physical and emotional environment in the home of each of the persons awarded joint custody
Physical custody, which is typically called parenting time in Indiana, refers to which parent literally has custody of the child, at any given time, according to the parenting time schedule. Similar to legal custody, physical custody may be awarded to one parent or both parents. However, there is no presumption in favor of a particular parenting time schedule, equal or otherwise. Rather, the Indiana Parenting Time Guidelines presume that it is in the child’s best interest to have meaningful and frequent contact with both parents; and therefore, the parenting time schedule should reflect that.
When it comes to divorce and custody in Indiana, the best outcomes arise when two parties work together to agree on a parenting time schedule that optimally benefits the kids. For some, the ideal agreement may be a 50/50 custody order, where the two parties split the parenting time schedule equally; while other parents may find a 60-40 or 70-30 schedule more suitable. However, when two parties cannot find agreement on a parenting time schedule, the court may need to step in and make their own determination.
While there is no preferred or statutory type of custody order in Indiana, family courts generally prefer to award parents joint legal custody and near-equal parenting time. However, courts must make a determination using the Indiana parenting time guidelines. These guidelines set forth a variety of factors the court shall consider when crafting the schedule, including the age of the child and the proximity of the parents’ homes. In addition, courts must always consider the best interest of the child, using the standard set forth in Indiana Code 31-17-2-8. This standard contains a handful of factors, including the age and sex of the child; the wishes of the parents; the wishes of the child (with more preference given to children over the age of 14); the child’s relationship with their parents and siblings; etc.
Enforcing Custody Orders in Indiana
For many non-custodial parents, the parenting time schedule is sacred. This is to be expected, as the schedule is literally a legal order granting them the right to spend time with their child. Given this, Indiana Code 31-17-4-4 contains a legal method to enforce custody orders. Under this law, noncustodial parents may file an injunction against custodial parents who deny them their legally ordered parenting time. However, to pursue an injunction, the noncustodial parent must satisfy several standards.
Standards to Pursue an Injunction Against a Custodial Parent in Indiana
- The noncustodial parent must have been granted parenting time rights with a child who lives with the custodial parent
- The noncustodial parent must regularly pay their court-ordered child support; and
- The noncustodial parent must have been barred by the custodial parent from exercising their court-ordered parenting time rights
If these standards are met, the noncustodial parent may file an application for an injunction against the custodial parent in the court that has jurisdiction over the dissolution of their marriage. If the injunction is granted by the court, a temporary restraining order may be placed upon the custodial parent, thus preventing them further violating the parenting time order. If the custodial parent proceeds to violate the injunction, the court may then elect to hold the parent in contempt.
In more serious situations, refusal to comply with a parenting time or custody order in Indiana can result in criminal charges. As prescribed by Indiana Code 35-42-3-4, when a person knowingly or intentionally removes another person who is less than eighteen (18) years of age to a place outside Indiana when the removal violates a child custody order of a court; or they violate a child custody order of a court by failing to return a person who is less than eighteen (18) years of age to Indiana, they may be charged with interference with custody, a Level 6 felony. In addition, under Indiana Code 35-42-3-4(b), a person who, with the intent to deprive another person of custody or parenting time rights, knowingly or intentionally (a) takes, (b) detains, or (c) conceals, a person who is less than 18 years of age commits interference with custody, a Class C misdemeanor.
Modifying Custody Orders in Indiana
Generally, Indiana courts only allow parents to modify custody orders in limited situations. As outlined in Indiana Code 31-17-2-21, parents may seek to modify an existing custody order if the modification is in the best interests of the child and there is a substantial change to one of the factors used to create the original custody order (i.e. the best interests of the child checklist). If a parent believes the situation meets the standards set forth by the law, they may then file a motion to modify the order with the court that originally issued the order. More importantly, the court MUST approve the modification for it to be valid. This means that in situations where both parents agree to the change, but they fail to have the modification approved by the court, the original order is still in place and enforceable.
Parenting time orders, however, may be modified whenever the modification would serve the child’s best interest. In other words, courts would be more likely to make modifications to increase parenting time, rather than reduce it. In fact, as clearly stated in Indiana Code 31-17-3-2, courts “shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”
If a parent would like to modify a parenting time order in Indiana, they’ll need to submit a petition to the court that presided over the original order demonstrating that either more or less parenting time is in the child’s best interest. For noncustodial parents seeking more parenting time, this may be done by showing documented evidence of increased participation in the child’s life and/or more active cooperation with the custodial parent. For custodial parents seeking to reduce a noncustodial parent’s parenting time, they would need to show documented evidence that, since the last order was made, the noncustodial parent’s actions or behavior has created danger in the child’s life or has had a significantly negative impact on their emotional development.
The Importance of Hiring a Family Law Attorney
Legal counsel plays a crucial role in handling cases involving both divorce and custody in Indiana. These types of legal matters can be fraught with legal complexities, and thus require a thorough understanding of Indiana family law. Typically, these matters also involve a fair amount of negotiation. Therefore, hiring an Indiana family law attorney who possesses the ability to capably negotiate on behalf of clients will better ensure a more fair and equitable resolution to issues at hand, especially in regard to property division and child custody.
If you’re a parent facing the prospect of divorce, the family law attorneys at Keffer Hirschauer LLP are available to be your advocate. Our attorneys are hands-on litigators who will take your needs and wishes to heart, and fight vigorously for your custody rights, both during and after your divorce. By choosing to work with our firm, you’ll receive confidential case consultations, results-oriented legal representation, and legal solutions that are tailored to your needs and goals.
Further Questions about Divorce and Custody in Indiana?
Navigating the landscape of divorce and custody in Indiana can be a complex and emotional journey. So, if you have further questions or concerns on the topic, do not hesitate to contact the Indiana child custody lawyers at Keffer Hirschauer LLP.
Our attorneys understand that legal matters involving your children and your rights as a parent can be both emotional and overwhelming. Given this, we strive to provide our clients with knowledge and unwavering legal support, thus making a tough legal issue as easy as possible. Simply put, we stand at your side for the duration of your case and advocate for you, all along the way.