Divorce (Dissolution of Marriage)

Divorce Basics

Indiana is a no-fault state, which means that the reasons for the breakdown of the marriage are irrelevant to the court. Most commonly, a petition for dissolution will state that there has been an irretrievable breakdown of the marriage and it should be dissolved. There are a few specific circumstances where the irretrievable breakdown is not appropriate, namely when there has been a felony conviction of either party, impotence existing at the time of the marriage, or incurable insanity for at least two years.

The state of Indiana must have jurisdiction in order to hear the petition for dissolution. Indiana has jurisdiction when one spouse has resided in the state for at least 6 months or is stationed at a military installation within Indiana. The county of filing must also have jurisdiction. One spouse must have resided in the county for at least 3 months or stationed in a military installation within the county. Additionally, the petition for dissolution must be filed in the county where a petition for legal separation is pending or a decree for legal separation is in effect.

The petition must be served upon the other party, either by waiver of service or summons through certified mail, personal service through a special process server, or by sheriff service. The court needs personal jurisdiction over both spouses to award spousal support or divide property.

Petition for Dissolution

The petition must be verified and signed by the party seeking dissolution and must set forth the residence of each party and length of residence in the state and the county, the date of the marriage, date of the separation of the parties, the names, ages, and addresses of any living children of the marriage that are under 21 years old or incapacitated, whether the wife is now pregnant, the grounds for dissolution, and relief sought from the court. If the wife wants her maiden name restored, she must ask for it in the petition. A responsive pleading or counter petition may be filed by the other spouse.

Legal Separation Pending

If petition for dissolution is filed while an order or decree for legal separation is in effect, the procedure for dissolution begins. A provisional order or decree for legal separation only remains in effect until the effective date of the provisional order on the petition for dissolution or the provisional order or decree for legal separation expires. At the time petition for dissolution has been filed, the court shall dismiss a petition for legal separation if neither a provisional order nor decree for legal separation has been granted. If a petition for legal separation is followed by a petition for dissolution, the court may hold a final hearing on the dissolution anytime 60 days after the first petition was filed.

Division of property ("one pot theory")

Indiana follows what is known as the "one pot theory". Essentially, all assets or debts owned by either spouse individually or jointly before or after the marriage and prior to final separation is divisible. This includes the marital home and other real property, any debts, any savings, checking, or retirement accounts, and any personal property or family businesses. Property not subject to division includes anything belonging to someone else, future earnings or benefits, social security disability insurance payments, or educational degrees. The assets of the marriage minus the debts of the marriage equal what is known as the net marital estate.

The court is seeking a just and reasonable division of property, so many factors will be considered in making a final distribution of the net marital estate. These factors include the contributions of each spouse to the acquisition of the property, the extent of property acquired prior to marriage or through gift or inheritance, the economic circumstances of the parties, conduct of parties, and the earning ability of each party.

Spousal Maintenance

The court will award spousal support or spousal maintenance in a few select circumstances. The parties may always agree to any form of spousal maintenance they wish. The court will only award maintenance when there is an incapacitated spouse, if the court finds that one spouse will lack the means to provide for his or her needs and he or she cares for an incapacitated child and therefore cannot work, or the court may find that rehabilitative maintenance is appropriate, but it cannot exceed three years. In awarding rehabilitative maintenance, the court will consider the education level of each spouse at the time of the marriage and when the petition was filed, whether one spouse stopped working as a result of taking care of the home or children or both, the earning capacity of each spouse and the time and expense necessary to enable the spouse seeking maintenance to find employment.

Resolution of Other Issues

The most important issues to resolve in the dissolution of marriage are the division of property, spousal support, if any, and if there are children of the marriage, child custody, child support and parenting time issues. In order to resolve all of these matters, the parties may be able to agree, but if not, other methods such as discovery, mediation, motions before the court and court hearings may be necessary. If there are children in the marriage, some counties require the parents to take a parenting class before their dissolution will be finalized.

Final Decree of Dissolution

A final hearing on the petition for dissolution can be heard no earlier than 60 days following the date of filing of the petition. The court may grant a Summary Dissolution, which is a decree without a final hearing if verified pleadings have been filed with the court and signed both parties and there are no contested issues in the action or the parties have a written agreement that settles all contested issues. Parties can agree to maintenance, disposition of property, custody and support of the children, and the terms of the agreement will be merged into the dissolution decree. Any disposition of property settled by agreement and merged into the decree is not subject to modification. The dissolution is not final until the court issues the decree. The decree is a final, appealable order.

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