One of the best ways to make the most of a divorce is to try to remove yourself from the emotion and clearly understand what you want, why, and if your legal desires are realistic. Divorce law is complex making this difficult. However, there are three pervasive myths about divorce law that have many litigants confused before they even consult with counsel. They are debunked and the focus of this blog.
The first myth is with property (e.g., stocks, bonds, cash, homes) that a party brought into the marriage. Indiana is a “one-pot theory” state for divorce. What this means is that all assets a party brings into a marriage (unless protected by a premarital agreement) are part of the divorce court’s assets to divide. And there is fifty-fifty presumption of an equal division. Where a party brought significantly more assets into the marriage, the trial court can make an unequal division if it is just and equitable, but you and your trial counsel must carefully show this in the evidence. Thus, the takeaway is if you brought little into the marriage and your spouse came to the marriage with significantly more money, the trial court will consider those assets in its division. Skilled counsel can make strong arguments for division deviation depending on the facts of your case.
The second and perhaps most pervasive myth is that mothers always get custody. Indiana is a gender-neutral state and either parent is equally entitled to custody. While some mothers assume they just get custody and some fathers assume they will not in divorce (or paternity) this is simply not true. If you through your counsel make the right presentation of evidence to show custody should be with mother or father is in the children’s best interests, the court can award a man or a woman primary physical custody. The court has several statutory factors it may consider in assisting with its determination, but literally, it can consider anything that plays into which parent should have custody in the child’s best interest. Thus, this evidence and trial preparation are how you and your counsel should have the ability to advocate for your custody position. It is not a foregone conclusion mothers obtain custody.
The third myth is that the other party will pay for your fees. Generally, under American law, each party pays his or her own legal fees. However, based on differences in income, bad behavior, or otherwise, you may be able to seek and obtain a fee award. The Divorce and Paternity Act have several provisions allowing a party to recover fees. This is very fact sensitive and something to carefully consider with your counsel. However, if one party ordinarily just expects the other party to pay his/her legal fees, this is a myth to avoid starting your case with.
We hope debunking these common myths helps you be a more educated legal consumer in divorce cases (the law on who obtains custody and award of legal fees also applies to paternity cases). This blog was written by attorneys at Dixon & Moseley, P.C. who handle divorces (and paternity cases) of all types throughout the state. It is written and posted for general educational purposes and is not to be construed as legal advice or solicitation for services. It is an advertisement.