By: Moncerrat Alvarez, Law Clerk.
Recently, studies have shown that the rate of divorce has been decreasing within the last decade. Although in recent years divorce rates have gone down, they are still double of what they were in the 1960s. There are studies that go to say that almost half of all marriages in the United States will end in divorce. Taking that into account, here are some things to consider and steps to take when pursuing a divorce.
The first thing to take into consideration is whether you actually want to get divorced. Before pursuing legal action, really think to yourself if this is the path you want to take. Legally, divorces are difficult to undo. In Indiana, the law takes this into consideration within the legal process by requiring 60 days to pass between the filing of a petition and considering the petition for a final hearing. To get divorced in Indiana, you or your spouse must be a resident of the state for at least six months and a resident of the county in which you wish to file for at least three months.
The ground for a divorce enumerated in the Indiana Statute for the dissolution of a marriage are as follows:
• Irretrievable breakdown of the marriage;
• The conviction of either party, subsequent to the marriage, of a felony;
• Impotence, existing at the time of the marriage; and
• Incurable insanity of either party for a period of time of at least (2) years.
You will next need to consider how you want to get divorced. While you may assume that divorce will land you in court, that is not always the case. It is best to be informed regarding what type of divorce is best for your situation. Regardless of what route you choose, it is always best to seek legal counsel to ensure the divorce filing is completed successfully. The three options for divorce here are mediation, collaborative law, and litigation.
Mediation allows a couple to meet with a third party in order to discuss their divorce, making the process overall quicker and less costly. Usually, this option is chosen when both parties agree regarding the divorce and are forthcoming about finances. If you would like to settle your divorce yourself, without an attorney this would be your best option. However, this route requires communication with your spouse, which in some cases can be difficult to efficiently handle a divorce this way and could potentially leave you with unfair divorce terms.
2. Collaborative Law:
When taking the Collaborative Law approach, like in mediation, the parties typically work through the divorce quicker than with litigation. However, here each party is represented by an attorney which can allow for a detailed discovery process and refinement within the negotiating process. The attorneys can sign what is called a participation agreement ensuring that they will do their best to settle this amicably and willingly cooperate to find a solution. If the collaborative law approach does not work for you, the attorneys are disqualified from representing either side and the case continues on to litigation.
The third option here is to settle a divorce in court. If you and your spouse cannot come to an agreement on settlement terms, the process is much more intense. The discovery process for a court solution is much more intricate. Your attorney will have to consider not only your argument but also the one your spouse will make in order to build a case as to why your perspective is correct. The time frame for this approach is much longer as you have to file, prepare for and ultimately go to trial. To decide as to every matter, the judge will listen to both sides and review evidence, witnesses (if applicable) and conclude based on how they believe the law should turn out. Further, once the decision is made it is binding. That means that regardless of whether you agree or not you will have to abide by this decision.
Regardless of which approach you choose, there is a list of items you will want to discuss when it comes to meeting with your spouse to negotiate. Typically, you will want to discuss issues such as disposition of property. Questions like who gets the house or car can become overbearing issues when neither party is willing to give it up.
If you have children, the child custody or child support issues may be the most difficult to resolve. Things to consider are how will children’s time be allocated between the two parties. Were there step children where a relationship was built, but there is no legal family tie? This is a difficult situation that not only affect you and your spouse, but it affects the children as well. Some parents choose to undergo therapy to ensure the child is able to handle the emotional turmoil this process may cause.
Child support goes hand in hand with determining custody, however, the two parties do not get to negotiate how much one parent owes to another. Since child support is the child’s right, the parents cannot negotiate on their behalf. Indiana Code sets out guidelines for how much a parent needs to pay. The statute considers each parent’s income, child care, the child’s health insurance costs, parent time allocation and so on. The court reserves the right to alter the calculated child support depending on circumstances which are not considered when originally calculating. As time progresses, if circumstances change you can request child support modification. For more information on that topic check out our previous blog entry titled “Do you Need a Child Support Modification.”
Here at Cate, Terry & Gookins LLC, we understand that this is a difficult process to go through, and we are here to help it go as smoothly as possible. If you need a divorce attorney give us a call at 317-564-0016 to set up a consultation and get your questions answered today.