So You Have Decided You Want A Divorce: Divorce FAQ
First, if you have
not carefully weighed this decision, please take the time to do so now.
"Divorce
Helpline: Tools to keep you out of court" written by a divorce attorney with 25 years experience, is one website devoted
to helping you decide if you really want a divorce and providing you with
information you might not have considered.
If you are
ready to proceed, this FAQ provides basic information about seeking divorce in the state of Indiana.
- How do I decide if
I need a lawyer?
- Is there a
residency requirement to get divorced in Indiana?
- What grounds do I need?
- What must I do in order to obtain a divorce
without an attorney?
- Must I have my spouse’s cooperation?
- How do I get a court hearing?
- Can I be divorced without a court hearing?
- What will happen in court?
- How
will our property be divided?
- What about the kids?
- Is
there a waiting period before the divorce is final?
- Where can I find the
legal forms?
How do I decide
if I need a
lawyer?
Unless you have a simple, uncontested divorce, it is
probably wise to consider hiring a lawyer. If there are any disputes about whether or
not there should be a divorce, or complications regarding property, taxes or
child custody, and especially if your spouse has hired a lawyer, you may need a
professional to represent you.
Here is information on locating
a lawyer in Northern Indiana .
Free
legal services in Indiana may be available to you if you meet income
guidelines.
Is there a
residency requirement to get divorced in Indiana?
One of the spouses must have been a resident of the state for 6 months,
and the county in which the petition is filed for 3 months, immediately prior
to filing for dissolution of marriage. [Annotated Indiana Code; 31-1-11.5-6].
What
grounds do I need?
LEGAL GROUNDS FOR DISSOLUTION OF MARRIAGE: No-Fault:
Irretrievable breakdown of the marriage. [Annotated Indiana Code; 31-1-11.5-3].
General:
(1) impotence at time of marriage; (2) conviction of a felony subsequent to the
marriage; and (3) incurable mental
illness for 2 years. [Annotated Indiana Code; 31-1-11.5.3].
What must I do in order to
obtain a divorce without an attorney?
You
must prepare a “Petition for Dissolution of Marriage,” according to a
particular form.
This form usually must be notarized,
which means you must wait to sign the petition until a Notary can
witness the signature. Most banks and credit unions have a Notary Public on
staff. There will be a filing fee; this may vary from county to
county.
When you take your petition to the courthouse, the clerk will help
you fill out a summons form and advise you of ways to deliver it, so your spouse
will be properly notified of your action and given time to respond. You
can pay a fee of around $35-50 and have the summons served by a sheriff. There
must be a 60 day period between filing the petition and the court hearing.
This will also give you time to fill out the “Decree of Marriage
Dissolution” form, which is the final document
granting your divorce. Make 3 copies, one for you, your spouse and the
court.
Must I have my
spouse’s cooperation?
Having your spouse’s cooperation will simplify
the divorce process. A contested
("adversarial”) divorce can be time consuming and difficult. However, sometimes the divorce is uncontested because the
spouse refuses to get involved at all.
There are legal procedures for obtaining a contested
divorce or a divorce when your partner's address is unknown. Consider
consulting a lawyer for information about such issues.
How do I get a court hearing?
You must file a
petition to ask the court to hear your case. You
might wish, also, to file for a
waiver of court filing fees.
Can I be divorced without a court hearing?
If this is an uncontested divorce with full spousal cooperation, you may file
a request for “summary judgment,” which
streamlines the process, sparing you a court hearing.
The law for this simplified form of divorce follows:
The court may
enter a summary dissolution decree without holding a court hearing in all
cases in which the following requirements have been met:
(1)
60 days have elapsed since the filing of a petition for dissolution;
(2) the petition was verified and signed by both
spouses;
(3) the petition contained a written
waiver of a final hearing;
(4) the petition contained either
(a) a statement that there are no contested issues, or (b) that the spouses
have made a written agreement in settlement of any contested issues.
If
there are some remaining contested issues, the court may hold a final hearing on
those remaining contested issues. In addition, marital settlement agreements are
specifically authorized in Indiana. [Annotated Indiana Code; 31-1-11.5-8 and
11.5-10].
What
will happen in court?
If you have not requested a summary judgment, you must
appear in court to offer your arguments for a divorce, and the court will decide
if a divorce is right for you.
How
will our property be divided?
Often, a
divorcing couple will decide about division of property and debts
themselves. If you and your spouse do not agree, the judge will divide it
according to Indiana law.
Indiana
is an "equitable distribution" state. The court will divide all of the
spouse's property in an equitable way and there is a presumption that an equal
division is just and reasonable. Marital fault is not a factor.
The
following factors are considered:
(1) the contribution of each spouse to the acquisition of the marital
property, regardless whether the contribution was income-producing;
(2) the economic circumstances of each spouse at the time the division of
property is to become effective,
including the desirability of awarding the family residence
to the spouse having custody of the children;
(3) the actual
earnings and the present and potential earning capability of each spouse;
(4) the extent
to which the property was acquired by each spouse prior to marriage or
through gift or
inheritance;
(5) the conduct
of the spouses during the marriage as it relates to the disposition of their property; and
(6) tax consequences of
property disposition. If there is insufficient marital property, the court may award money to either spouse as
reimbursement for the financial contribution by one spouse toward the higher education of
the other
[Annotated Indiana
Code; 31-1-11.5-11.1]
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What about the kids?
Custody
decisions are based on the best interest of the child. [Annotated
Indiana Code; 31-1-11.5-21].
For more information, please read the Child
Support FAQ
.
Is there a waiting period before the divorce is
final?
After the hearing, if the divorce is
granted, the judge will file an order that will be recorded at the court.
The length of time required for this will vary from county to county, but is
rarely more than a few weeks. You will receive a copy of the formal decree by
certified mail. This completes the process.
Where can I find the legal
forms?
Legal forms can be obtained through your
attorney.
If you want to prepare your own divorce, check with your
local public library. Some books with information and forms are:
Divorce Indiana Style (1997) by Randy J. Chamber
Divorce Yourself: the National No-fault Divorce Kit by
Dan Sitarz (Nova Pub Co, 1998)
How to File Your Own Divorce (with forms) by
Edward A. Haman (Naperville, IL, Sourcebooks, 1998)
Legal document preparation services and divorce form kits
are also available for purchase on the web.
SLISGRP 3/2000
