Although it seldom happens, there are divorce litigants who are arbitrarily held up by Indiana’s current sixty day waiting period for its residents who file divorce actions. Stated differently, if there is no acrimony and no legal issue or contested issues, parties must still wait for sixty days before an Indiana trial court can issue a divorce decree.
This waiting period inter alia gives the parties a cooling-off period and ensures the wife is not pregnant. Such is not-surprising given the religious connotations generally associated with marriage–a union ordained by God (whatever his/her/its name might be in a given religion). Public policy more broadly supports marriage as a key institution and foundational principle of our Society.
As Indiana family law advocates, on occasion we have cases where these important policies are not fostered by more time spent in a divorce action. We may now have a tool to address these cases. On January 4, 2012, Senate Bill 17, authored by Indiana Senator Steel, was referred to the Committee on Corrections, Criminal, and Civil Matters. This Bill proposes to allow a divorce to be ordered fifteen days after filing in certain cases.
In this blog post, Dixon & Moseley, P.C. examines the legal means by which this may occur and some of the benefits and detriments of the proposed Bill, should it become law. Clearly, this is a good law to have on the books. The application and use is what is potentially concerning. Please carefully consider this law as we unpack it for you–then cast your vote.
At the broadest (and beneficial) level, litigation involves conflict–sometimes lots of it. While Indiana trial courts, judges and lawyers seek to minimize its impact (bickering inherent in divorce and certain other litigation), parties are best served by expediently resolving disputes before they become entrenched in fighting–where the fight itself becomes the de facto legal objective, disconnected from the purpose the litigation is intended to effectuate.
This policy, which Senator Steele’s bill seeks to foster, namely reaching agreement, being divorced, and moving on in life, is presently embodied in the Dissolution Act, which allows an Indiana trial court to summarily divorce parties sixty days after filing if two conditions are met:
- The parties enter into and file a written waiver of their right to a final hearing.
- The parties filed a statement there are no contested issues or a written contract resolving any contested issues.
Senate Bill 17 shortens the time to fifteen days if these conditions are met. Plus, and again in a nod to the importance of the family unit, the parties’ submit a statement to the trial court that demonstrates “certain factual circumstances exist that make reconciliation impossible.” If there is hope, the marriage is not ripe for this quick summary dissolution.
Nevertheless, a fifteen-day divorce could be an important tool in the lawyer’s toolbox to use to help his or her client obtain a divorce, such as where the marriage has only been consummated a short time before. In fact, almost immediately in a small percentage of cases, married couples find they are wholly incompatible and seek divorce (usually contacting legal counsel seeking annulment, which is a very narrow right in Indiana) right after they marry.
In these and other cases, the benefits of a fifteen-day divorce are obvious, and include the following:
- Reduced legal fees.
- Ability to move on with separate, more productive lives.
In a majority of cases, such as where there are children or the marriage has lasted any duration, it is difficult to untangle the custody, parenting time and child support matters (collectively child custody issues) and divide the assets (which includes liabilities in Indiana) within the current sixty-day time frame, even with willing parties. For example, a divorce may be held up several months while a pension and other assets of indeterminate value are appraised or valued.
The property (again, assets and liabilities) is the major risk factor in the fifteen-day divorce: a well-intentioned, but nevertheless quick, divorce brings the (potential) inability to properly address the property, forever foreclosing relief. Why?
This risk is best understood by comparing and contrasting it with child custody issues. Under the legal and physical custody statutes, along with the child support statues , the court’s ordered terms are modifiable if the situation is not in the child’s best interests or relative (gross weekly) incomes for child support change.
In fact, this ability for modification exists for the duration of the time the child is a financial obligation for the parents (twenty-one is when support typically stops at the latest point in time ).
With property (real and personal), on the other hand, the trial court loses jurisdiction over its ordered property division thirty days after the divorce decree is entered, save for contempt or related enforcement powers of the-already-decided property division order. For misvalued or omitted property, this is problematic. Unfortunately, such omissions occur with some frequency now in divorces that pend for lengthy periods of times.
A shorter or compressed timeline may exponentially increase such miscues in divorces cases for any of the following reasons:
- Limited time for attorney to assess the case.
- No time to conduct discovery.
- Litigant focused on emotional or other non-legal issues.
Thus, a short-term (15 day-divorce) may be exactly the right tool and meet the legal needs of the litigants and comport with legal and public policy in some cases. But it might not in others.
Ultimately, if improvidently utilized, the fifteen-day divorce has the potential to short-change the children, although it should be expected Indiana’s trial courts will continue to look at (and sometimes reject) these custody agreements for this reason as they sit in loco parentis. Perhaps the trial court’s review will be even more detailed in fifteen-day divorce cases involving children. And these cases could leave contracting adults without a legal remedy on improperly addressed property.
For this reason, the fifteen-day divorce should not become the norm or a litigant’s expectation. Instead, as an educated litigant, this is a topic you should consider with your counsel, if it appears to fit your case and legal objectives. In other words, the short-term desire to be divorced should not be a substitute for the legal, emotional and financial benefits of a well executed and litigated divorce brought about by skilled counsel and a diligent judiciary.
It is but a consideration of many with the vast tools available to effectuate a just and reasonable division of assets and meet children’s best interests. Dixon & Moseley, P.C. attorneys hope you find this blog informative to help you become a more educated member of the citizenry at large or divorce litigant with more information, balance and reasonableness. Dixon & Moseley, P.C. attorneys practice throughout the State of Indian. This blog post is written by Bryan L. Ciyou, Esq.