Divorce,  Law

Indiana Divorce Laws

Divorce laws vary from state to state and even from county to county.

Divorce in Indiana is not too difficult comparing to other states, but it usually takes a rather long time. Let’s sort out the peculiarities of Indiana Family law more in-depth.

Residency requirements

Residency requirements are the first requirements you need to meet in order to start a divorce process. To be eligible to file for divorce in Indiana either you or your spouse should live within the state for at least six months next preceding the filing of the petition. Also, you should file a Petition for Dissolution of Marriage in the particular county where you have lived for at least last three months.

There is only exception for the service members. According to the federal law, if one of the spouses is stationed in Indiana as a military for a certain term, he or she may be considered as a resident of the state and file for divorce under Indiana jurisdiction.

Grounds for divorce

Indiana is a mixed state, meaning that both fault and no-fault grounds are recognized by the Code.

Although some people may choose one of the fault grounds in the hope of gaining some benefits or an advantage in a trial, actually, fault-based grounds for divorce are less popular nowadays. The point is that in order to file for divorce under one of these grounds the Plaintiff (filing spouse) must present an evidence of the spouse’s misconduct or other problem before the court. Fault grounds for divorce in Indiana include:

  • the felony conviction of one spouse (happened after the marriage);
  • impotence;
  • incurable insanity (for 2 years and more).

No-fault ground for divorce leads to less complicated divorce process, so it’s gaining popularity. In Indiana the no-fault ground for divorce is “irretrievable breakdown of the marriage.” This brief wording implies that the spouses just can’t get along anymore, and the spouses can testify that the marital relationship cannot be fixed. No one is to blame and neither spouse needs to prove anything.

Waiting period

In the state of Indiana, there is a mandatory 60-days waiting period after filing the petition for divorce. This means that the minimum time an uncontested divorce may take in Indiana is 61 days, even if the case is simple and there is an agreement between the parties. 61th days can be the day of the final hearing.

Property division

In the US, property division laws vary by state. Nine of all the states are so-called community property states, and the rest follow equitable distribution laws.

Indiana belongs to equitable distribution states. Unlike community property states, where all the marital property typically must be divided in half, in equitable distribution states the spouses’ property is divided in a divorce proceeding “in a fair and equitable way” (that does not necessarily mean equal). The judge must take into account the list of certain circumstances and conditions which may affect on what division should be considered fair.

Under the Indiana family law, there is a presumption that, in general, equal division of the property is fair unless one of the spouses can present evidence of unfairness. So, in order to make a final decision or to conclude whether the spouses’ Marital Settlement Agreement is fair, the judge should consider the following factors:

  • The financial condition of each spouse;
  • Each party’s contribution into the marital welfare (both monetary and not);
  • Each party’s income, amount of separate property, earning capacity and perspectives, and so on;
  • The fault of either party in the dissipation or waste of marital property;
  • The preference to award the spousal home to the parent who gains physical custody of a child.

Notice, that only the marital property is subject to division. All the property that was acquired by each spouse before the marriage, or during the marriage but by gift or inheritance, remains to belong to its initial owner.

Child custody

Speaking of an uncontested divorce, the spouses are assumed to create their own parenting plan and submit it to the judge. This plan should outline custody arrangement, visitation hours, and other vital issues of the parenting. Otherwise, the court enters the custody order at its own discretion, following the best interest of the child and taking into account such important factors as age of the child, parents’ wishes regarding the custody as well as child’s preferences (of he or she is 14 years or more), the nature of parent-child relationship, the child’s adjustment to habitual home, school, and community, mental and physical condition of all the involved parties, and the history of domestic violence or abuse if any.

In the state of Indiana two types of custody may be distinguished:

Physical custody determines who provides a home for the child, as well as who is responsible for day-to-day care.

Legal custody refers to the decision-making power of the parents. It determines who is eligible to make some big decisions concerning the child’s life (for example, education, religion, medical treatment, travels out of state, and so on.)

Indiana courts may award either joint or sole custody. Joint custody means that both parents participate in the child’s life, sharing the parenting rights and responsibilities. Joint physical custody may be awarded if the parents live not too far from each other. It doesn’t means that the time spent by the child with each parent must be equal, though it should be significant (alternate weekends, holidays, months, etc.) Also, sole physical custody may be awarded along with the joint legal custody – and this is the most common type of custody arrangement.

In general, joint legal custody and the child’s close contact with both parents is considered to meet the child’s best interests, if it is not proved otherwise. The court always considers the parents’ ability to communicate and negotiate for the sake of the child’s well-being.

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