- January 6, 2016
- CLLB Law
- Family Law
Everyone knows that no matter what the tag says, one size does NOT fit all. Divorces are the same way, since no two sets of circumstances are identical. Legally referred to as a “dissolution of marriage,” many divorces are settled without the parties having to endure a contested courtroom proceeding. If you are unable to settle your case with your spouse, then it will go to trial. The complexity of any divorce really hinges on two main points: whether or not there are minor children and whether or not the parties have an agreement on all the issues. Listed here are some general guidelines, but it is extremely important to consult a family law attorney who can cut out the excess and tailor your divorce action to your situation.
The lawyer you hire will file a document called an “appearance” that informs the court that he or she is representing you. The appearance serves as a sort of shield that requires the court and your spouse’s lawyer to communicate directly with your lawyer. Another document called the “summons” is the one that informs your spouse that he or she is being sued for divorce. The “petition” is the document that actually asks the court for dissolution of the marriage.
This is where the notorious grounds for the divorce are listed. The vast majority of divorce proceedings are based on an irretrievable breakdown of the marriage. You do not have to “prove” that the marriage is irretrievably broken – you just have to state it in your petition. Your spouse can contest it if he or she wants, but if you want a divorce, you’ll be granted a divorce.
After these documents are properly filed with the court, your spouse will be served with their own official copies. This is now their opportunity to file their own statement of facts and request for relief in an “answer.” At this point, your lawyer will likely seek a provisional hearing where temporary orders are given about the significant issues that need to be addressed while the long term agreement is worked out — things such as child custody, child support, spousal maintenance and possession of the house, the cars, and the bank accounts. The hearing is by request only and can be cancelled if you and your spouse can agree on how these matters will be handled between the start and the end of the divorce action.
Once the formalities are out of the way, then the negotiations start. This part of the process can be very time consuming and involves compromise in order to be successful. This is the time for both parties to try to gain perspective and not act based on emotions. No one gets everything they want in a divorce, so figure out what you have to have and where you can give in. If you and your spouse can agree on all the issues, then a “marital settlement agreement” will be drafted that sets the rules going forward. The court has to examine the agreement and approve it before it goes into effect, but once it does, it is very hard to change.
If the parties and their attorneys simply cannot reach an agreement, the next step is mediation. Mediation involves a third attorney that represents neither side. You will sit in one room with your attorney, your spouse will sit in another room with his or her attorney, and the mediating attorney will go back and forth, discussing the various issues. The mediator’s job is to get both sides to compromise.
The first part of preparation is called “discovery” and refers to the exchange of information. This is when the contested issues are singled out and the assets, income, and debt of the parties are identified.
Both spouses present their side of the story to the judge through testimony, witnesses, exhibits and experts. The spouse who filed the action (the petitioner/plaintiff) goes first, followed by the spouse who was served (the respondent/defendant). Because Indiana is an “equitable distribution” state, the judge’s role is to divide the property and debts between the divorcing parties fairly and equitably — not necessarily equally. Custody is determined in accordance with the best interests of the child.
Once the judge enters a “final dissolution of marriage” – a decree” – it becomes an order. An order can be modified as time goes by if there has been a change in circumstances, but only as to custody and child support. The division of assets and debts is final. If the order is not followed, a “motion to compel compliance” can be filed, or the noncompliant former spouse could even be held in contempt of court.
There are many other terms and nuances involved in successfully resolving a divorce, including residency, venue, mediation, waiting periods, and proper service of papers. It is imperative that you speak with an Indiana divorce lawyer who can represent your interests and make the process go as smoothly as possible.
If you have any questions about this topic, you can find out more by discussing it with one of the attorneys at Church, Langdon, Lopp, Banet Law. We have years of experience helping people, and we can help you. Based in New Albany, Indiana, we proudly serve communities throughout Kentuckiana; Floyd County, IN; and Clark County, IN. Contact us by calling (812) 725-8224 or using our online form.