Indiana Family Law FAQs

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Indiana FAQs

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What is the difference between divorce and legal separation in Indiana?

In Indiana, there are two distinct legal processes to address marital difficulties: legal separation and dissolution (divorce). These processes have different purposes and outcomes.

Legal separation is an option when it is currently intolerable for the parties to live together, but the marriage should still be maintained. It acknowledges that the parties are experiencing difficulties in their marriage but believe that these difficulties are temporary and that the marriage can be preserved. The legal separation process allows for the orderly resolution of issues such as child custody, child support, and debt payment. However, it is important to note that legal separation is intended to be a temporary arrangement, with a duration typically limited to one year. The presumption is that the parties agree that their difficulties are temporary and that the marriage should ultimately be maintained.

On the other hand, dissolution, also known as divorce, is the legal process to end a marriage when the parties agree that the marriage should not be maintained. It is a permanent termination of the marital relationship. Unlike legal separation, dissolution is not a temporary arrangement but a final dissolution of the marriage. It involves the resolution of various issues, including child custody, child support, division of assets and debts, and spousal support.

It's important to note that legal separation and dissolution are mutually exclusive. Legal separation can serve as a prelude to dissolution if the difficulties in the marriage persist and the parties decide that the marriage cannot be maintained. In such cases, the legal separation can be converted into a dissolution proceeding.

The choice between legal separation and dissolution depends on the parties' assessment of the viability of the marriage. If they believe that the difficulties are temporary and the marriage can be preserved, legal separation may be pursued. However, if they determine that the marriage cannot be maintained, dissolution is the appropriate course of action.

How expensive is divorce in Indiana?

The cost of a divorce can vary depending on the level of litigation involved. In general, divorces can become expensive when there are disputes that require extensive legal proceedings to reach a resolution. However, at Wise & Associates, they strive to minimize attorneys' fees through their approach of "staged flat fees."

On average, a contested divorce without the need for a trial can cost around $9,000. This includes expenses related to legal representation, court filings, and other associated costs. However, Wise & Associates aims to provide more affordable options for their clients. With an average divorce cost of approximately $6,000, they offer a cost-effective alternative compared to other divorce law firms in Indiana.

By utilizing staged flat fees, Wise & Associates aims to provide transparency and predictability in their billing process. This approach allows clients to have a clear understanding of the costs involved at each stage of the divorce process. It helps minimize surprises and provides clients with greater control over their expenses.

The goal of Wise & Associates is to provide quality legal representation while keeping costs reasonable. They understand that divorce can be a challenging and emotionally charged process, and they strive to offer their services at a more affordable rate compared to other firms.

It's important to note that the cost of a divorce can vary depending on the complexity of the case, the level of cooperation between the parties, and other unique circumstances. It's advisable to consult with an attorney to discuss the specific details of your situation and obtain a more accurate estimate of the potential costs involved.

Can my ex pay for my attorneys fees?

In Indiana, the general rule in civil litigation is that each party is responsible for their own attorney's fees. However, in dissolution or legal separation actions, there are two avenues by which one party may be required to pay the attorney's fees of the other.  

The first avenue is provided by an Indiana Code provision that grants the court the authority to order the payment of a reasonable amount for the other party's attorney's fees and costs in maintaining or defending the dissolution or legal separation proceeding. The purpose of this provision is to ensure that a party who may not be able to afford an attorney can still have representation. The court has broad discretion in deciding whether to award attorney's fees and should consider factors such as the parties' resources, economic condition, ability to earn income, and other relevant factors.

The second avenue for awarding attorney's fees applies to all Indiana civil actions, including dissolution and legal separation. It allows the court to award attorney's fees if it finds that a party brought or continued to litigate the action on a claim or defense that is frivolous, unreasonable, or groundless, or if the party litigated the action in bad faith. It's important to note that this misconduct refers to litigation misconduct, not marital misconduct, as Indiana follows a no-fault divorce system.

It's crucial to understand that the court has discretion in determining whether to award attorney's fees and the amount to be awarded. The court will consider the specific circumstances of the case, including the parties' conduct, resources, and the reasonableness of the fees requested.

What is alimony in Indiana?

In Indiana, alimony has largely been replaced by the concept of spousal maintenance. Alimony was the pre-1973 term for payments intended as a form of property division, while spousal maintenance refers to payments made for the benefit of the former spouse.

Spousal maintenance is intended to support the former spouse and can be ordered by the court upon legal separation or dissolution. However, the availability of spousal maintenance is limited in Indiana. The court can only order spousal maintenance over the paying spouse's objection in three specific situations.

The first situation is incapacity maintenance, which is available when a spouse is physically or mentally incapacitated to the extent that their ability to support themselves is materially affected.

The second situation is caregiver maintenance, which may be awarded when a spouse lacks sufficient property to provide for their needs and is the custodian of a child with a physical or mental incapacity that requires the custodian to forego employment.

The third situation is rehabilitative maintenance, which can be awarded to allow a spouse to seek education or training to find appropriate employment.

The burden of proving eligibility for spousal maintenance falls on the party seeking it. They must demonstrate that they meet the requirements for one of the three types of maintenance. It's important to note that parties have the freedom to construct their own settlement agreements, and they can agree to terms such as alimony or maintenance even if it may not meet the statutory qualifications. However, absent an agreement, Indiana courts have limited authority to award payments from one spouse to the other for the benefit of the other spouse.

How is spousal support decided in Indiana?

In Indiana, spousal support, also known as maintenance, can be awarded in both legal separations and dissolutions, whether provisional or final. The decision to award maintenance is within the discretion of the trial court.

It is widely accepted that fault, in terms of marital misconduct, cannot be considered in determining maintenance. Indiana follows a no-fault divorce system, and the focus is on the financial aspects of the parties rather than assigning blame. However, a spouse's conduct may be relevant if it affects their ability to work, employability, income, or property. For example, if a spouse's conduct has a negative impact on their earning capacity, the court may consider it in the maintenance determination.

The duration of the marriage can also be a factor in determining maintenance. While there may be a relationship between marital fault and the duration of the marriage, the Court of Appeals has endorsed the consideration of the marriage's duration in determining maintenance. This suggests that the duration of maintenance should not exceed the length of the marriage.

It's important to note that the court has discretion in determining the amount and duration of maintenance. The court will consider various factors, including the financial resources and earning capacity of each spouse, the standard of living during the marriage, the duration of the marriage, and the contributions of each spouse to the marriage.

Can spousal maintenance be modified in Indiana?

In Indiana, spousal maintenance, also known as spousal support, can be modified or revoked under certain circumstances. The Indiana Code states that provisions of an order regarding maintenance can be modified or revoked.

To modify spousal maintenance, a showing of changed circumstances that are substantial and continuing must be made. These changed circumstances must be significant enough to render the existing terms of the maintenance order unreasonable. This standard requires a demonstration that the circumstances have significantly and continuously changed since the original order was issued.

Additionally, there is a specific provision related to modification based on child support. If a party has been ordered to pay child support that differs by more than 20% from the amount that would be ordered by applying the Child Support Guidelines, and the order requested to be modified was issued at least 12 months before the petition for modification was filed, then modification may be considered.

It's important to note that any maintenance provision in a settlement agreement is modifiable only if the agreement explicitly allows for modification. If the agreement does not address modification, the court may not have the authority to modify the maintenance provisions. Parties should clearly state in the agreement whether they contemplate the possibility of modification and whether certain circumstances, such as remarriage or cohabitation, should automatically terminate the maintenance.

How does property get divided in a divorce in Indiana?

In Indiana, the division of property in a divorce follows the principle of equitable distribution. Equitable distribution is based on the concept that marriage is a partnership, and both parties are entitled to a fair share of the property accumulated during the marriage.

Under equitable distribution, it doesn't matter whose name is on the title or who purchased a particular asset. What matters is that each party receives their fair share of the total marital property. This includes assets such as the house, vehicles, pensions, savings accounts, and other assets acquired during the marriage.

Indiana follows a "one-pot" theory, where all marital property is considered part of one collective pot. The court then divides the contents of this pot equitably, with the presumption that an equal distribution is equitable. However, the court has the discretion to deviate from an equal distribution if it determines that equity requires a different division.

In the metaphorical sense, each party contributes their assets to the marital "pot" upon dissolution. The court then stands as the arbiter, using a ladle to distribute the contents of the pot into each party's empty bowl. The court's goal is to achieve an equitable distribution, which may or may not be an equal distribution depending on the specific circumstances of the case.

It's important to note that equitable distribution applies to marital property, which generally includes assets acquired during the marriage. Separate property, such as assets owned prior to the marriage or acquired through inheritance or gift, may be treated differently and may not be subject to division.

What is marital property in Indiana?

In Indiana, the concept of marital property refers to all the assets of both parties involved in a divorce. The state follows a "one-pot" system, which means that all property owned by either spouse or both spouses is considered marital property and subject to division.

Under Indiana law, marital property includes all assets acquired by either spouse during the marriage, regardless of whose name is on the title or who purchased the asset. This includes assets such as real estate, vehicles, bank accounts, investments, retirement accounts, and other valuable possessions. However, there are certain interests that do not constitute property and are not subject to division. These interests are typically those that are not sufficiently vested or certain. While they may not be considered marital property, the court may still consider the presence or absence of such interests when dividing the marital property.

It's important to note that separate property, which includes assets owned prior to the marriage or acquired through inheritance or gift, is not considered marital property and is generally not subject to division. Separate property remains the sole possession of the individual who owns it.

When dividing marital property, the court aims to achieve an equitable distribution based on various factors, including the length of the marriage, the financial contributions of each spouse, the earning capacity of each spouse, and other relevant considerations.

It's advisable to consult with a family law attorney to understand the specific laws and guidelines regarding marital property in Indiana. An attorney can provide guidance based on the unique circumstances of your case and help you navigate the legal process effectively.

What is child custody in Indiana?

Child custody in Indiana refers to the relationship between parents and their child. While the Indiana Code does not provide a direct definition of custody, it does define a custodian as a person with whom a child resides for the purposes of the juvenile law.

The concept of custody encompasses more than just the physical residence of the child. It involves a complex set of rights and obligations between parents and their child. Parents have the right to supervise, care for, and educate their child, while the child has the right to receive support and maintenance from their parents. Both parents also have inheritance rights and the ability to seek compensation for injuries caused by the other parent.

The custodial parent, as determined by the court, has the authority to make decisions regarding the child's upbringing. This includes decisions related to education, healthcare, and religious training. However, this authority does not necessarily mean absolute power. The court may still order the parent with decision-making authority to consult with the other parent and provide access to information regarding the decisions being made.

It's important to note that custody arrangements can vary depending on the specific circumstances of the case. The court may consider factors such as the child's best interests, the parents' ability to provide for the child's needs, and the child's relationship with each parent when determining custody.

In Indiana, which parent gets to have legal custody of the child?

In Indiana, the court may grant joint legal custody to both parents, allowing them to share the authority and responsibility for making major decisions regarding the child's upbringing. This includes decisions related to education, healthcare, and religious training. Joint legal custody does not necessarily require joint physical custody or equal time-sharing arrangements.

The term "physical custody" is not specifically defined in the Indiana Code, and it is generally discouraged to use this term without further clarification. Instead, it is common to refer to one parent as the custodian, unless the court has specifically granted joint legal custody.

While joint legal custody allows both parents to be involved in decision-making, it does not necessarily mean that they must share equal physical custody or have an equal amount of time with the child. Physical custody arrangements are separate from legal custody and can vary depending on the specific circumstances of the case.

Parents living in separate households may need to share information and communicate with each other to effectively exercise their shared authority and responsibility for the child's upbringing.

It's important to consult with a family law attorney to understand the specific laws and guidelines regarding custody in Indiana.

How is parenting time different than visitation?

In Indiana, the term "parenting time" is used instead of "visitation" to emphasize the ongoing parent-child relationship rather than a temporary visit. The Indiana Parenting Time Guidelines explicitly state that the term "visitation" is not used because it does not accurately convey the reality of the parent-child relationship.

Parenting time is defined in the Indiana Code as the time set aside by a court order for a parent and child to spend together. This definition focuses on the "with whom" aspect of parenting time rather than the specific location. In contrast, the term "access" is a more modern term that encompasses both the "who" and the "where" of parenting time.

The issue of whether parenting time includes a location component or is solely about the interaction between the parent and child has become increasingly relevant. The Indiana Parenting Time Guidelines, which were established in 2001, treat telecommunication as a supplement to parenting time rather than a replacement. However, with advancements in technology, parents now have the ability to have frequent and meaningful interaction with their child through electronic communication. Balancing this opportunity for additional interaction with the custodial parent's rights and the best interests of the child can be a challenge for litigants and courts.

It's important to consider the specific circumstances of each case when determining parenting time arrangements. The court will consider factors such as the child's age, the parents' availability, the child's needs, and any potential impact on the child's well-being when making decisions about parenting time.

Do I have to pay child support?

In Indiana, the duty to pay child support applies to all parents in all types of families. The state's child support system aims to approximate the level of support the child would receive if the parents were still living together and sharing expenses.

Indiana's child support regime calculates the appropriate amount of support based on the combined incomes of both parents. This total income is used to generate a figure that represents the amount typically expended on children by most parents at that income level. The parents are then directed to pay their share of this amount based on their respective incomes. This approach is known as the "income shares model." However, the court has discretionary authority to override these figures if necessary.

It's important to note that the child support amount is based on the average amount spent on children by most parents at the combined income level. For parents who may be particularly indulgent in their spending, the calculated amount may seem relatively low.

The Indiana Child Support Guidelines also acknowledge that in cases where the custodial parent's income greatly exceeds the noncustodial parent's income and the noncustodial parent exercises substantial parenting time, the child support arrangement may deviate from the traditional direction. In such cases, child support could potentially flow from the custodial parent to the noncustodial parent.

It's advisable to consult with a family law attorney to understand the specific child support guidelines and calculations in Indiana. An attorney can provide guidance based on the unique circumstances of your case and help you navigate the legal process effectively.  

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