DIVORCE AND FAMILY LAW SUMMARY
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Indiana have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of community property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
LEGAL GROUNDS FOR DIVORCE
Dissolution of marriage shall be decreed upon a finding by a court of one of the following grounds and no other ground:
- Irretrievable breakdown of the marriage.
- The conviction of either of the parties, after the marriage, of a felony.
- Impotence was discovered at the time of marriage.
- Incurable insanity of either party for at least two years
LEGAL SEPARATION
Legal separation shall be decreed upon a finding by a court that conditions in or circumstances of the marriage make it currently intolerable for both parties to live together; and that the marriage should be maintained. Residency requirements are the same as for dissolution, and a legal separation may not be granted if a dissolution of marriage has been filed.
PROPERTY DISTRIBUTION
Indiana is an equitable distribution state. The court shall presume that an equal division of marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income-producing.
(2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The parties’ conduct during the marriage is related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to a final division of property and a final determination of the property rights of the parties.
RESIDENCY REQUIREMENTS
At the time of the filing of a petition for dissolution, at least one of the parties must have been (1) a resident of Indiana; or stationed at a United States military installation within Indiana for six months immediately preceding the filing of the petition, or (2) a resident of the county; or stationed at a United States military installation within the county; where the petition is filed for three months immediately preceding the filing of the petition.
ALIMONY-SPOUSAL SUPPORT
The court may order maintenance in either a dissolution of marriage or legal separation. Suppose the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support themself is materially affected. In that case, the court may find that maintenance for the spouse is necessary during the period of incapacity.
If the court finds that a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment; the court may find that maintenance is necessary for the spouse in an amount and for some time that the court considers appropriate. The court will consider the following factors when awarding maintenance:
- The educational level of each spouse at the time of marriage and at the time the action is commenced;
- Whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
- The earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
- The time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
LEGAL NAME CHANGE
A woman who desires to restore her maiden or previous married name must set out the name she desires to be converted to her in her petition for dissolution as part of the relief sought. The court shall grant the name change upon entering the decree of dissolution.
CHILD CUSTODY
The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the child’s best interest. The court shall determine control and enter a custody order per the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent.
The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The child’s wishes, with more consideration given to the child’s wishes, if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with: (A) the child’s parent or parents; (B) the child’s sibling; and (C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian. If a court determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding. The court shall award custody of the child to the child’s de facto custodian if the court determines that it is in the child’s best interests.
CHILD SUPPORT
In action for dissolution of marriage, legal separation, or child support, the court may order either parent or both parents to pay an amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:
(1) the financial resources of the custodial parent;
(2) the standard of living the child would have enjoyed if the marriage had not been dissolved, or the separation had not been ordered;
(3) the physical or mental condition of the child and the child’s educational needs; and (
4) the financial resources and needs of the non-custodial parent. A child support order may also include, where appropriate, basic health and hospitalization insurance coverage for the child and provisions for the child’s education.
In a proceeding to establish, modify, or enforce a child support order, the court shall enter an order for immediate income withholding. The duty to support a child ceases when the child becomes twenty-one (21) years of age unless any of the following conditions occur:
- The child is emancipated before becoming 21 years of age due to joining the United States armed services, marriage, or is not under the care or control of either parent or an individual or agency approved by the court.
- The child is incapacitated. In this case, the child support continues during the incapacity or until further order of the court.
- The child is at least 18, has not attended a secondary or postsecondary school for the prior four months, is not enrolled in a secondary or postsecondary school; and is or is capable of supporting themself through employment. (If the child is only partially supporting or is capable of only partially supporting themself, the court may order that support be modified instead of terminated.)
PREMARITAL AGREEMENT
A premarital agreement must be in writing and signed by both parties. Parties to a premarital agreement may contract the rights and obligations of each of the parties in any property of either or both of them whenever and wherever acquired or located. A premarital agreement may not adversely affect the right of a child to support.
A premarital agreement is not enforceable if a party against whom enforcement is sought proves that the party did not execute the agreement voluntarily or the agreement was unconscionable when the agreement was executed.
