When one spouse files for divorce, there is a lot that needs to happen quickly, and a lot that cannot happen. Sometimes a Husband and Wife talk before divorce is filed, and determine how they will divide custody and parenting time, who will stay in the marital residence, and who will continue to drive what cars, and who will pay the bills. But sometimes, divorce comes as a surprise or one spouse is angry and does not want to compromise.
In Indiana, there is a 60 day waiting period from the date divorce is filed with the courts, to the soonest possible date a judge can dissolve the marriage1. However, a divorce often takes longer as there are many issues to consider, such as custody of the children and how to divide the debts and assets. But what happens on day one? How do a Husband and Wife know which should be responsible for paying the various expenses, and who will have custody of the children and when the other will exercise parenting time? As mentioned above, in an ideal world, the couple has discussed this beforehand, or is willing to discuss this with attorneys and come to an agreement.
If the Husband and Wife cannot agree, then a preliminary hearing is necessary2. A preliminary hearing is exactly as the name implies, it is the initial hearing in a divorce case, but is not the final hearing. A preliminary hearing is when the parties (Husband and Wife) (and with attorneys if they have them), go in front of a judge for the judge to make the immediate provisions for the carrying on of the marital business while the couple is adjusting to a new life separated. Things such as who will pay which bills, who will stay in the marital residence (and who will move out), if someone is moving out of the marital residence which furniture or belongings they can take, and who will have custody of the children or how parenting time will work. A preliminary hearing is not for the purposes of dividing the entire marital estate, such as who gets the 401k or even who will own the marital residence (just who will live there during the pendency of the matter). Some parties, acting on emotion, may just want to get the divorce over with, and bring in some matters that are better suited to wait until all discovery is complete and a final settlement or final hearing can be had, but a preliminary hearing is not the time (i.e. signing over the title to a car, or canceling health insurance).
A preliminary hearing is usually short in duration, sometimes only half an hour. Once the parties arrive in court, they may feel the pressure to come to an agreement, and agreements can be worked out in the hallway even before you get to a judge. Other times, you go in front of the judge and the judge just hears argument from the attorneys (i.e. Wife should stay in the marital residence because…), and other judges may prefer for each party to testify (the attorneys ask questions and the parties answer), to get a good feel for the current situation.
Once you go before a judge to make certain preliminary orders, it is important to keep in mind, going in, that a judge is likely to order to maintain the status quo. Therefore, if Husband has always paid all the household bills and Wife is a stay at home mom, the judge will likely order that Husband keep paying all the household bills, even if he is the one moving out of the marital residence.
Preliminary orders are just that, preliminary, and do not have a bearing on a final order. Meaning, that if Wife is allowed to stay in the marital residence during the pendency of the action, it is possible the house would be Husband’s after a final division of property. This is because the person needing a place to live may just need time to find a new residence, and the house goes to the person who wants to keep it, or can afford to keep it.
We hope that this blog post has been helpful in understanding the purpose of preliminary hearings in a divorce case, and what to expect. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.