Divorce is shrouded in fear and urban legend. However, for most couples in a broken relationship, it is the pathway to move on in a new and more positive direction when the divorce is ultimately granted by the Court. While divorce is a complex legal and financial transaction—and also an emotional one—sometimes involving professionals from psychologists to tax experts, it all boils down to three basic concepts you must understand to properly begin a divorce or help a friend through the process: jurisdiction, property division, and child custody. The fundamentals of each of these components of a divorce are the subject of this blog post.
The legal concept of jurisdiction may seem a bit strange. What the jurisdictional component of divorce focuses on is if a given Indiana court should accept and decide a divorce case. The threshold element is whether a party (a husband or wife) has been a resident of the county the divorce is filed in for three (3) months and lived in the state for six (6) months. These requirements are to ensure a person simply does not just move to Indiana and file for a divorce to avoid people from picking states with divorce laws more favorable to their legal objectives, such as alimony (Indiana is not an alimony state) and to ensure the evidence the court needs to hear is in Indiana, not a different state. If these requirements are not met, the divorce cannot be filed, and if it is, is subject to dismissal. Further, even if these are met but the other spouse and children have been living in another state for six (6) months, this is the child’s “home state” under the Uniform Child Custody Jurisdiction Act all states have adopted and most likely where the divorce case will wind up being heard. Additionally, the filing party has to allege the marriage is irretrievably broken and that the wife is not pregnant. The reason for the last is because if there is an unborn child of the marriage, the court has to make a custody award.
The second component is child custody. Indiana has a gender-neutral point of departure for custody so either parent is on equal footing to obtain physical or legal custody. In the past, this has not always been the case and courts typically awarded children of “tender years” (infants and toddlers) to their mothers. Physical custody is awarded to the parent establishing it is in the children’s best interest to have custody. In a broad sense, physical custody is normally placed with the parent who has primarily attached with the child (i.e., the parent between the two parents the child would seek out if they were sick, injured or hungry) so long as that parent will also be willing to facilitate the non-custodial parents parenting time under the Indiana Parenting Time Guidelines, as it is key for Courts to maximize both parents’ relationships with their children. This noted, and while not the law, the Court has the authority to order joint custody and this is the new trend where the kids spend more or less equal time with their parents. The court must also award legal custody. Legal custody may be joint or sole and refers to which parent(s) makes the decision about the child’s health care, religion, and education.
The third and final component is property division. Indiana is a one-marital-pot theory state. What this means is that all assets the parties brought into the marriage, acquired during the marriage, and possessed to the date of filing is subject to division by the Court at the time of the divorce. This is a presumption the court is to divide the property equally, but it can unequally divide the property to ensure a just and equitable result. So the statutory presumption is the divorce Court will equally divide the marital estate, which in basic form, is taking all you have minus what you owe and dividing by two and apportioning the half between each spouse.
With jurisdiction, custody and property division, there are innumerable tools your divorce attorney can utilize to attempt for you to obtain a result that is different than the presumptions. This occurs every day in Indiana divorce courts. The key is developing evidence to support your position. While each of these aspects of divorce can be very complex depending on the facts unique to your case, the laws in the Divorce Act along with good lawyering and experts can help you obtain joint or sole custody or an equal or unequal property division. This is what you need to know to engage the divorce process in Indiana and then work with your attorney to meet your legal objectives. This blog is provided by attorneys at Dixon & Moseley, P.C. for general educational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.