The length, cost and complexity of divorce proceedings depend greatly upon the parties involved. When divorcing spouses are willing to work together to resolve their issues in a constructive manner, the process, while still emotionally challenging, can be streamlined in both duration and cost. However, when the parties are unwilling or unable to work together, a litigated divorce, along with attendant delays and costs, may be unavoidable. Our chief goal at Shilts & Setlak, LLC is to help our clients achieve timely, reasonable, and cost-effective divorce settlements so they can move on with their lives. However, we recognize that we cannot always persuade an intractable opposing spouse or attorney to cooperate on the settlement effort. When litigation is necessary, our attorneys effectively and efficiently process your case through the dissolution process, including a trial if necessary.
Indiana is a “no-fault” state. A party simply needs to declare that the parties have suffered an irretrievable breakdown of their marriage. Other than simply pleading that this breakdown has occurred, no other proof is required.
Indiana requires a minimum of 60 days to pass from the date of the filing of the petition for dissolution of marriage before a Decree can issue ending the marriage and finalizing the divorce. At the beginning of every case, a decision must be made whether a temporary agreement, called a provisional agreement, should be entered into by the parties to cover the time period over which the dissolution occurs. The minimum is 60 days for the processing but in some unusual instances, divorce cases can take upwards of two years to complete. This temporary agreement would deal with custody of the children, parenting time rights, support, occupancy of the former marital residence, payment of bills, use of automobiles, maintenance and payment of all insurance programs, and preserving all of the assets that existed on the date of the filing. If the parties believe that an agreement is necessary but are unable to agree on the specific terms, then the court can hold a hearing on these provisional or temporary matters and enter Provisional Orders which will control each parties’ rights and responsibilities regardless of how long the dissolution process. Indiana law is clear that these Provisional Orders are not prejudicial to either party in the final settlement of the dissolution or at the trial, if settlement efforts fail.
Child Custody and Parenting Time: Assuming there are children of the marriage who are under 19 years of age still living with one or both parents, the issues to be resolved in a divorce case include custody, parenting time, support, property identification, property valuation, property division, and assessment of attorney fees.
Custody: There are two types of custody under Indiana law: sole custody or joint legal custody. Sole custody basically provides for one parent being the decision-maker as it relates to the major issues concerning a child’s life including schooling, healthcare, religion, activities, and discipline. Joint legal custody involves both parents and is basically an understanding between the divorcing parties that notwithstanding their differences which led to the end of their marriage, they have an ability to communicate with each other and make decisions on important matters that are in the best interests of their child. Joint legal custody is also commonly granted when the parties appreciate that one party traditionally has made the decisions for the benefit of the child or children and the other party has deferred to the decisions of the parent who has traditionally dealt with such matters. Click on link to read more about custody.
Parenting Time: Indiana Parenting Time Guidelines represents a basic understanding of the minimum parenting time a noncustodial parent may enjoy with his or her child or children both during the processing of a divorce and after the Decree issues. Parenting time and custody are two completely separate issues though many people mistakenly intertwine the two. Custody is about decision making and parenting time is about actually providing for the direct care and physical custody of the child. For illustration purposes, view parenting time in a two-week cycle. Under the Guidelines, the custodial parent has the child all of the time except for an alternate weekend from Friday early evening until Sunday early evening and a midweek block of three or four hours. From that basic and minimum parenting time schedule, the parenting time of the noncustodial parent can be expanded to include such additional amounts as the parties may agree upon or as may be ordered by the court. Typical additions include the midweek parenting time being overnight with the noncustodial parent taking the children to school or day care, as the circumstances may dictate on that particular morning. Another typical addition would be extending the alternate weekend parenting time until Monday morning with the noncustodial parent again having the responsibility for the child that particular morning. The court will not interfere with parents agreeing on parenting time which could possibly include an equal parenting time arrangement. Equal parenting time arrangements can vary depending upon the children’s schooling schedule and each party’s work schedule. Also, a primary philosophy of the court is to encourage children to be cared for by parents as opposed to being a day care or similar supervisory setting. The Guidelines also provide for alternating holidays, alternating spring school vacations, and an equal sharing of the summer school vacation. The Guidelines provide for important notice requirement on some of the parenting time elections. Click on the link to read more about parenting time.
Collection of information regarding assets, debts, and income: Indiana subscribes to the “one pot” theory in the valuing and distribution of the marital estate. In other words, all assets and debts owned or owed by one or both parties on the date of the filing is included in the marital estate. From that point forward, the marital estate is fixed and no new assets or debts can be added. Assets can be valued as of the date of the filing or any date up to the final hearing. Valuation of assets can be as simple as getting a bank statement for the appropriate date or getting an appraisal of real estate, personal property, or a business. Typically debts are easily established by an examination of the date of filing credit card, automobile loan, or mortgage loan statement. Click on the link to read more about asset division.
Settlement and Trial: Settlement can occur by agreement of the parties and the execution of a Marital Settlement Agreement. In the event that the parties cannot agree, then typically before a court will allow the issues to be litigated, the court will require that the parties pursue mediation. Mediation is a formal negotiation process where an attorney, typically trained in assisting parties to mediate differences, attempts to have the parties compromise their respective differences to the point of agreement or to the point where the differences are so insignificant that it only makes sense to settle the case to avoid the passage of time and the additional incurrence of attorney fees.
In the event that mediation is not successful, a trial may be required to finalize the dissolution process. Settlement can occur up to and even after the trial occurs, so long as it is registered with the court before the court issues its Decree. After a trial is completed, whether that is a one-hour trial or a three day trial, the court has 90 days to issue the Decree. The court almost never enters any ruling at the end of the trial itself and as a consequence of the costs involved and the delay in getting a Decree, mediation has proved to be a very attractive alternative to many parties going through this unpleasant process.
Attorney Fees: Each party is obligated to pay their own attorney fees unless the other party agrees to contribute or unless the court orders the other party to contribute. The court has the authority to order contribution on the payment of attorney fees if it believes that to be fair after examining the parties’ incomes, resources, and other information it believes to be relevant to that question. A party’s improper conduct which causes the increase of the other party’s attorney fees can lead to an award of attorney fees and costs.
Indiana law creates a cause of action for legal separation in 1984 that is separate and distinct from divorce. Legal separation allows spouses to separate their affairs and provide for spousal maintenance, child support and child custody without actually dissolving the marriage. A court may grant legal separation when it finds that the conditions of the marriage make it intolerable for the parties to continue living together but reasons exist for the marriage to be maintained. Spouses cannot file for legal separation after having initiated a cause of action for divorce. They can, however, convert a pending cause of action for legal separation to one for the dissolution of marriage quite easily. A Decree of Legal Separation lasts only one year before it dissolves.
Spouses considering divorce in Indiana have several options. Planning ahead can greatly expedite the process. Contact the attorneys at Shilts & Setlak, LLC who, with nearly 60 years combined experience, can work with you before filing any divorce action, as well as through every step of the process, after filing to help you identify the issues that are important to you.