Separation vs. Divorce
A legal separation, may not to exceed one year and essentially serves to maintain the if the court finds that: (1) conditions in or circumstances of the marriage make it currently intolerable for both parties to live together; (2) the marriage should be maintained; and (3) neither party has filed a petition or counter petition for dissolution of marriage. A divorce decree is a permanent order, whereas a decree for legal separation is only "good" for one year. After the year expires, spouses return to their status as legally married persons. Frequently, during the one-year legal separation, spouses either reconcile or covert the action to a divorce.
No Fault Divorce
In Indiana, fault is of no consequence, meaning neither party must show fault in order to obtain a divorce. In other words, individuals seeking a divorce can do so without establishing any reasons, cause or blame. In fact, even if one party opposes the divorce, the other party may still obtain the divorce.
Issues Resolved in a Divorce
Technically speaking, a divorce is referred to as dissolution of marriage. A divorce has the effect of returning the parties to the status of single persons. The divorce process effectuates the division of property, divides a couple's assets and debts, and determines the custody, parenting time, and child support arrangements of a couple's children. Throughout the divorce, the discovery process takes place. Some methods of obtaining information include interrogatories, requests for production, depositions, motions to produce, subpoenas duces tecum, etc. These methods request certain documents and ask certain questions that are ultimately very helpful in resolving the issues at hand.
Requirements to File for a Divorce
In Indiana, the parties must be residents of Indiana for 6 months prior to the filing of a Petition for Dissolution of Marriage and must be residents of the county where the petition is to be filed for 90 days. There are limited exceptions if the parties do not meet the exact requirements of this general rule. The Petition for Dissolution of Marriage states the names and ages of the husband, wife, and all children of the marriage; states when the parties were married and when the parties separated; states the current residence of the parties; and asks the Court to dissolve the marriage. Additionally, it requests the Court to provide for support, property division, parenting time, court costs, and attorney fees. If your spouse has already filed a Petition for Dissolution of Marriage, you should bring a copy of such Petition to your initial consultation.
Importance of the Date of Filing or "Date of Separation"
The date of filing refers to the actual date the Petition for Dissolution of Marriage was filed with the Court. (This should not be confused with the date the parties physically separate and/or move into separate residences). The date of filing is important for several reasons.
Following the filing of the Petition for Dissolution of Marriage, the other spouse must be notified of such filing. The other spouse can receive the petition in the following ways: (1) by sheriff or personal process server to hand-deliver the petition to the other spouse; (2) by certified mail; or, (3) by waiver of service.
The time period between the date of filing the petition for dissolution of marriage and the date your divorce is final is often referred to as the preliminary period. "Preliminary issues" are often considered "temporary issues" and include things like temporary custody and parenting time, temporary child support, temporary spousal maintenance, possession of marital residence, responsibility for monthly expenses, etc. The important thing to remember is that IF you and your spouse can agree on a temporary resolution concerning the preliminary issues, you do not need go to court. You and your spouse can simply agree on how to handle the preliminary issues. In the event that you and your spouse cannot resolve the temporary issues, a preliminary hearing may be set by the court. This can be a particularly important part of the divorce proceeding. Spouses would be well advised to use the preliminary hearing as a forum to position arguments that will be made at the final hearing. Following the
In Indiana, spouses are sometimes required to mediate the issues of child custody, child support, visitation, property division and other issues. Even if it is not court-ordered, it is often very helpful to participate in mediation. The purpose of mediation is to seek a resolution of these issues without a final hearing on the merits. Mediation is conducted by a neutral third party referred to as a mediator who attempts to forge a settlement of the various issues that the parties are unable to agree upon. In our experience, mediation is often very successful in settling divorce cases.
After 60 days from the date of filing the petition for dissolution of marriage, spouses are eligible to be legally divorced. In addition to all of the issues that are at issue during the preliminary period, there are numerous other issues, including asset distribution, that need to be resolved before the finalization of the divorce. Again, if you and your spouse are able to reach an agreement on all issues, it is not necessary to go to court. In the event you cannot reach an agreement on all issues, the court may set a final hearing. At a final hearing, the Judge will issue a final order and decree for dissolution of marriage.