Everyone who begins a divorce watches television or has a friend who has certain beliefs in the divorce system that often shape how they talk about the process, view it and sometimes advise their friends. In this blog, we address three myths that are commonplace in Indiana. Avoid these and make the most of your divorce and expectations.
Sixty-day divorce. Under the Divorce Act, the court can divorce parties in 60 days. However, divorce is a complex financial transaction and where there are children involved, one that their best interests must be addressed. Where there is a marriage of any duration, it is normally impossible for a divorce to “untangle” marital assets, such as sell or refinance the marital residence and complete these tasks within thirty days. Where children are involved and a parent is moving, there may be a custody evaluation by a forensic custody evaluator to make recommendations to the court in the children’s best interests. These often take several months. Thus, despite the law allowing for parties to be divorced in 60 days, it is rare that this occurs, except in a marriage without a significant amount of assets or children. You want your divorce done correctly so when it is finished, there are no dangling ends, such as who pays for what joint credit card. So set your expectations this way from the beginning. This is not a process your attorney or the court can ordinarily complete in 60 days, nor should you want it to be.
Mother’s always get custody. The tender year’s presumption, which was a law that decided ordinarily tender of a young age should be with their mother’s no longer exists in Indiana. The law is gender-neutral in the first assessment does not favor any parent. This is not to say that a mother will not obtain primary custody if she has been the primary caregiver. Instead, it means the court or parties (if they can reach an agreement) must make a custody determination in the children’s best interests. If you are a father, you need to take the time to develop the evidence with your counsel of why physical custody should be with you. If you can establish this in court—and virtually everything connected with and surrounding the children—relates to their best interests. Maybe you cannot make a compelling argument for physical custody, but the parties and courts are gradually shifting to joint custody. The take away is there is no maternal presumption and either parent may obtain physical custody, noting the trend is joint physical custody.
I want my day in court. Indiana judges are ready, willing and able to hear your divorce case. However, of the attorneys, therapists, and those familiar with your case, such as lay witnesses, they know the lest about it. It is what you present in evidence. They are there as a last line resort and encourage parties to reach agreements. Any agreement reached and approved by the court is far better because the party’s who have to live with it have worked it out, not had it imposed upon them by the court. Thus, most courts require parties to go to mediation to try to resolve cases before trial. The notion of a divorce ending by trial is outdated and one that you should avoid or think of as how the case ends and try for agreement.
This blog post is written by attorneys at Dixon & Moseley, P.C. who handle divorce cases of all types throughout Indiana. We hope it dispels some common myths for you. This blog is written as general for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.