The last two years have placed tremendous strains on family dynamics. Between 2009 and 2019, divorce rates increased in Indiana, according to data from the United States Census Bureau. In 2020, the pandemic forced people together and eliminated the opportunity to take breaks, likely impacting already fragile relationships. Indeed, Google searches for how to file for divorce in Indiana peaked in the spring of 2020 and the fall of 2021. For anyone seeking to return to being single, the first step should be learning what the Indiana divorce process entails.
Regardless of the reason for your decision, you need capable and experienced counsel to helm your divorce so that your rights are protected. An Indianapolis divorce attorney from Keffer Hirschauer LLP can help you navigate Indiana divorce laws to achieve your desired result when trying to learn how to file for divorce in Indiana.
How to File for Divorce in Indiana: The Initial Requirements
When determining how to file for divorce in Indiana, one of the first questions is where to begin. The legal process for divorcing is called a dissolution of the marriage, and it begins when the spouse seeking the divorce files a petition for dissolution. The petition is a formal written request asking the court to dissolve or end the marriage. Indiana Code § 31-15-2-5 established what must be included in the petition. This includes:
- The residence of each spouse, including the length of residence in the state and the county where the petition is filed
- The date of marriage
- The date on which the parties separated
- The name and address of every child of the marriage who is either less than 21 years of age or is disabled
- The grounds for divorce
- The relief (results) sought in the divorce case
- A statement whether either party is a lifetime sex or violent offender
The reason for including each party’s residence is explained in Indiana Code § 31-15-2-6, which requires that, prior to the filing, at least one of the spouses must have resided:
- In Indiana for at least six months, and
- In the county where the divorce is filed for at least the last three months
The grounds for divorce need not state a detailed reason. Indiana is a no-fault state, meaning the parties need only state that that marriage is irretrievably broken. However, Indiana Code § 31-15-2-3 also provides other grounds that could be stated in the petition if relevant:
- Impotence that existed at the time the parties married
- A felony conviction of either party after the marriage
- Incurable insanity of a spouse for a period of at least two years
You don’t need to know how to file for divorce in Indiana without help. Whether you’re filing in Marion County or elsewhere in the state, an Indianapolis divorce lawyer from Keffer Hirschauer LLP can prepare and file a verified petition to help you start to move forward. The date of filing is often considered the date of separation, a legal concept that can have an impact on the assets and debts to be divided and their valuation.
Indiana Divorce Laws Establish a Waiting Period
To understand how to file for divorce in Indiana, you need to know the endgame as well. Indiana has a 60-day minimum waiting period for the entry of a divorce decree. The clock starts running when the petition for dissolution is filed. Work on resolving the divorce can continue throughout this period—and often beyond. This work includes gathering relevant documentation to demonstrate all of the assets and liabilities of the spouses. Under Indiana Code § 31-15-7-4, this includes property and debts of each spouse individually and of the spouses jointly.
Also during this time, the parties negotiate—or litigate—other issues necessary to carry on their lives and manage the marital estate while the divorce is pending. These include matters such as:
- Who will have possession of their residence
- Who will have use of certain assets, such as vehicles
- Who will pay certain routine bills, such as rent, mortgage loan payments, car loan payments, and utilities
When the parties have children of the marriage who are dependents, they must also reach some agreement or have the court decide how they will handle child-related issues. This includes determining an appropriate child support order, child custody, and parenting time matters.
Under Indiana Code § 31-15-4-8, the court may enter provisional orders to make agreements—or court decisions—regarding these issues enforceable while the divorce is pending.
Terminating the Marriage via a Final Hearing or Waiver
The marriage is terminated by the entry of a decree of dissolution terminating the marriage and a judgment establishing each spouse’s rights and obligations. As noted above, the court may issue the decree and judgment no sooner than 60 days after the filing of the petition for dissolution. The decree and judgment may be based on an agreement reached by the spouses or following trial on all issues on which the spouses do not agree.
If the parties reach an agreement on all issues to be determined in the divorce, they can waive a final hearing, ask the court to approve their written agreement, and issue a decree of dissolution. Reaching an agreement does not speed up the 60-day waiting period, but it can avoid the need to appear in court. The parties must satisfy the following conditions to waive the final hearing:
- Both must agree to the waiver and sign it
- The waiver must be in writing
- The waiver must state either that there are no contested issues or that any contested issues have been resolved by written agreement under Indiana Code § 31-15-2-17
If the court approves the written agreement, it will agree to the waiver of the final hearing and issue a decree of dissolution and judgment incorporating the agreement.
On any issues on which the parties do not submit a written agreement, the court will hold a final hearing, a trial at which each spouse will offer evidence in support of the court decision requested. After the conclusion of the hearing, the court will consider the evidence, pleadings, and agreements presented by the parties and then do one of two things under Indiana Code § 31-15-2-15, the court usually issues a decree of dissolution and judgment establishing the rights and responsibilities of each spouse going forward regarding what constitutes a marital asset subject to division, the value of such assets, the allocation of those assets between the spouses, each spouse’s responsibility for individual and joint debts, and all child-related matters. However, if the court believes there is a chance of reconciliation, it may continue the case to allow the spouses to work on that.
Divorce Property Division Basics
Understanding how to file for divorce in Indiana also requires being informed about what Indiana divorce law says about what constitutes marital property and how to divide it in a divorce. Indiana Code § 31-15-7-4 provides that marital property includes all property owned by both spouses, whether it was acquired before the marriage or afterward. In other words, property owned by only one spouse may be included in the marital estate subject to division.
Under Indiana Code § 31-15-7-5, the court presumes that an equal split of the “marital pot” is just and reasonable. However, certain circumstances may persuade the court to allocate an asset to one spouse without an equal offset to the other. This is called rebutting the presumption. To rebut the presumption that an equal split is just and reasonable, either party can provide evidence of the following:
- The contribution of the parties to the acquisition of the property
- How much was acquired by the party before marriage or through inheritance
- The economic circumstances of the parties, especially considering which party might have custody of any children
- Each spouse’s conduct as it relates to the dissipation (waste) or disposition of an asset
- The earning ability of the parties
The court has options when dividing up property:
- Divide property in kind
- Allocate an asset to one spouse and requiring that spouse to pay the other for the same, either in a lump sum or in installments
- Order a sale of property and division of the sale proceeds
- Assign to one spouse future payments from an asset that is part of the marital pot, such as future pension or retirement benefits, when those payments will be made after the dissolution of marriage
The division of property can be a time-consuming process and can require representation by an Indiana divorce lawyer who has experience dealing with the identification and valuation of assets in both straightforward and complex estates. Your Keffer Hirschauer LLP divorce attorney can capably assist in this as well as help facilitate a desirable distribution for a court to review.
How Indiana Divorce Laws Handle Child-Related Issues
Child-related matters can complicate the Indiana divorce process and cause emotions to run high. An attorney focused on family law has greater experience in negotiating agreements and litigating these issues than a general practitioner. Following are common issues that divorces with children must address.
Calculating Child Support in Indiana
Indiana Child Support Rules and Guidelines provide both parents and judges alike specific guidance when it comes to child support calculations and payments. The guidelines provide a child support schedule based on the premise that the child has the right to receive the same support (through parental income) that the child would have received had the marriage remained in place. A parent’s Indiana child support obligation is calculated using gross weekly income figures, which include all income (including both regular and irregular income) except public assistance income. A divorcing spouse with irregular income or income that is not guaranteed (such as overtime pay) needs counsel to help educate the court on the appropriate, Guideline-compliant child support order for the situation.
Modifying a Child Support Order in Indiana
It is not unusual for one or both parents’ income or financial circumstances to change over time. When this happens one or both parents may ask the court to modify the child support order. The court may modify a child support obligation if the requesting parent shows:
- The existing child support order was entered at least 12 months before the modification was requested, and
- The existence of substantial, changed circumstances since the last order, or
- The current support order differs by more than 20 percent from the amount that would be ordered by applying the child support guidelines
Indiana Child Custody Laws
Questions about how to file for divorce in Indiana often involve child custody. Indiana law provides for one type of child custody, legal custody. Legal custody relates to decisions made about the child care and upbringing, such as decisions about health care, education, and religious training. A court may award sole legal custody to one parent, giving that parent all decision-making authority regarding major decisions about the child’s upbringing, or joint custody, which requires both parents to make such decisions together. Courts will look to factors such as parents’ abilities to financially provide for a child and parents’ abilities and willingness to invest in their children’s educational and medical needs. Courts can take into consideration the desires of children who are at least 14 when it comes to custody.
People often refer also to the concept of physical custody. This refers to the right to the child’s presence or to have the child reside or spend time with a particular parent. In Indiana, physical custody is addressed by the parenting time schedule ordered by the court, often in reliance on the Indiana Parenting Time Guidelines, which have amendments going into effect January 1, 2022.
Modifying Custody in Indiana
Parents may agree to modify custody or ask the court to determine a change in custody. Even when parents agree to modify a custody arrangement, the change must be approved by the court. The court may grant a request to modify custody if the requesting parent has demonstrated a substantial change in circumstances impacting the current custody order and that the requested modification is in the child’s best interests.
Knowing How to File for Divorce in Indiana Is as Simple as Finding the Right Divorce Attorney
Figuring out how to file for divorce in Indiana on your own is a burden and involves many risks. Your assets, your children, and your future deserve guidance from an experienced Indianapolis divorce attorney. At Keffer Hirschauer LLP, our family law team can help facilitate the process and work with you to effect a legal end to a marriage and a resolution that gives you a fresh start. To learn more about how we can help in your case, contact our office today by calling us at (317) 857-0160 or complete our online contact form.