- Legal Overview
- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
- Premarital Agreement
Divorce in Indiana requires that you have been resident for at least six months. There is only one specific “ground” required to obtain a divorce in Indiana, a “no-fault” divorce. Read our detailed legal summary of Indiana including grounds, residency, child custody, child support, alimony, premarital agreements, property, mediation, legal separation, and special dissolution procedures.
In order to get a legal separation in Indiana, one of the spouses must have been a resident of the state for 6 months and the county for 3 months immediately prior to filing for legal separation. A legal separation may be granted on the grounds that living together is currently intolerable for one of the spouses. A legal separation does not end a marriage, rather it only is a court order recognizing that the parties wish to reside separately.
Special Dissolution Procedures
In Indiana, a court may enter a summary dissolution decree without holding a court hearing in certain special circumstances. The court may enter such a decree in all cases in which the following requirements have been met: (1) 60 days have elapsed since the filing of a petition for dissolution; (2) the petition was verified and signed by both spouses; (3) the petition contained a written waiver of a final hearing; (4) the petition contained either (a) a statement that there are no contested issues, or (b) that the spouses have made a written agreement in settlement of any contested issues.
If there are some issues that have not been agreed to by the parties, and remain in contention, the court may hold a final hearing on those remaining contested issues, and any ruling by that court is final. In addition, marital settlement agreements are specifically authorized in Indiana. The reason for this is to allow amicable and expedited divorce proceedings as often as possible.
If one of the spouses believes and makes an official request, or the court, on its own, believes that there is a reasonable possibility that the parties can continue with the marriage, the court may order that any further divorce proceedings be delayed for 45 days and also may order that the parties seek counseling. The court ordered counseling may be through a court appointed counselor, or mediator, or it may be one mutually agreed upon by the parties.
Indiana has residency requirements dictating whether a party may file for divorce in a particular county, or in the state. In order for a party to file for divorce one of the spouses must have been a resident of the state for 6 months and the county in which the petition is filed for 3 months immediately prior to filing for dissolution of marriage. A neutral third party may be required to testify in order to prove that one of the spouses has in fact met the residency requirements.
Grounds for Divorce
There is only one specific ground for divorce in Indiana and that is a no-fault divorce. A no-fault divorce means that the marriage is irretrievably broken and is has no reasonable chances of survival. There are also several general grounds upon which a marriage can be legally ended. The Indiana statues allow a judge to terminate a marriage if on the following factors is met: (1) impotence at time of marriage; (2) conviction of a felony subsequent to the marriage; and (3) incurable mental illness for 2 years.
Division of Property
The distribution of the marital property is one of the most hotly contested issues in any divorce proceeding. Indiana’s laws establish Indiana as an “equitable distribution” state. This means that the court will divide all of the spouses’ property in a just manner, whether jointly or separately owned and whether acquired before or after the marriage, including any gifts or inheritances. There is a presumption that an equal division is just and reasonable. The respective faults of each party in a divorce are not factors that are considered in the division of property in Indiana.
However, the following factors are considered: (1) the contribution of each spouse to the acquisition of the marital property, regardless whether the contribution was income-producing; (2) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family residence to the spouse having custody of the children; (3) the actual earnings and the present and potential earning capability of each spouse; (4) the extent to which the property was acquired by each spouse prior to marriage or through gift or inheritance; (5) the conduct of the spouses during the marriage as it relates to the disposition of their property; and (6) tax consequences of property disposition. If there is insufficient marital property, the court may award money to either spouse as reimbursement for the financial contribution by one spouse toward the higher education of the other.
Alimony or spousal support can be awarded to either spouse for their support or maintenance after the divorce. Alimony payments are designed to assist with financial obligations of the receiving spouse and to help that spouse maintain a lifestyle similar to the one they had prior to being married. Most likely, the lifestyle can not remain exactly the same due to the paying spouse typically having to maintain two households for a period of time. Since a majority of spouses both work rewarding alimony is not extremely common although it does exist. Most of the time alimony is rewarded for a short period of time just to help the receiving spouse get on his or her feet again.
In Indiana, maintenance will be awarded to a spouse who: (1) is physically or mentally incapacitated to the extent that they are unable to support themselves; or (2) lacks sufficient property to provide support for his or herself and any incapacitated child and must forgo employment to care for the physically or mentally incapacitated child. Marital fault is not a factor.
In addition, rehabilitative maintenance may be granted to a spouse for up to 3 years, based on the following factors: (1) the time and expense necessary to acquire sufficient education and training to enable the spouse to find appropriate employment; (2) the educational level of each spouse at the time of the marriage and at the time the action is commenced; (3) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; (4) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence or absence from the job market.
In order to receive the court order of child custody one parent must prove that he or she having custody would be in the best interest of the child. The court may award either joint or sole custody and its determination is based on the best interests of the child, and based upon the following factors: (1) the age and sex of the child; (2) the preference of the child; (3) the wishes of the parents; (4) the child’s adjustment to his or her home, school, and community; (5) the mental and physical health of all individuals involved; and (6) the relationship of the child with parents, siblings, and other significant family members.
On the other hand joint custody may be awarded if it is in the best interest of the child and would be where both parents share the responsibilities of tending to the child equally. Joint custody would be determined in what would be the best interest of the child and based upon the following factors: (1) the physical proximity of the parents to each other as this relates to the practical considerations of where the child will reside; (2) the fitness and suitability of the parents; (3) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody; (4) the willingness and ability of the persons awarded joint custody to communicate and cooperate in advancing the child’s welfare; (5) the wishes of the child; and (6) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody.
Most parents realize that it is best for them to decide on custody, support and visitation without the help of the court. Leaving these issues up to the court creates an element of surprise that most individuals can live without. Indiana has Child Custody Guidelines that will come into play if the parents are incapable of being rational with one another in making these important decisions.
The court will determine which parent shall pay child support (most often the non-custodial parent) and what amount the support shall be in. Either parent may be ordered to pay reasonable child support, without regard to marital fault, based on the following factors: (1) the standard of living the child would have enjoyed if the marriage had not been dissolved; (2) the physical and emotional conditions and educational needs of the child; and (3) the financial resources, needs, and obligations of both the non-custodial and the custodial parent. Support may be ordered to include medical, hospital, dental and educational support. Support payments may be required to be paid through the clerk of the court. There may be other factors taken into consideration by the court if the child has extraordinary needs.
In April 2012, the Indiana Legislature voted to lower the age of emancipation from 21 to 19, but exempts support for educational expenses.
If the parties entered into an agreement prior to marriage concerning the division of property, child custody, and child support the Indiana courts will look closely at the agreement. To be effective the agreement must be in writing and signed by both parties and is enforceable without consideration. After marriage, the agreement may be amended or revoked only by a written agreement signed by both parties and the amendment is enforceable without consideration.
The agreement is not enforceable if a party proves that (1) the agreement was not executed voluntarily; (2) the agreement was unconscionable when executed. If the agreement modifies or terminates spousal support and causes hardship, the court may require the party to provide spousal support. The judge can make this determination based on the evidence he or she has, or can request the parties submit further evidence. If the marriage is determined to be void, the agreement is enforceable only to the extent necessary to avoid an inequitable result.