Dissolution of Marriage Summary

If you are now involved in a dissolution of your marriage, then there are few things in life more taxing on the human spirit than what you are about to experience. Even if this matter proves to be harmonious in its resolution, it has historically been difficult for the participants. This office will try to make the process as easy as possible for you.

I wish to try to prepare clients as much as possible for the procedures involved. This document is not intended to be your only source of information, but your first exposure to many of the steps and procedures involved in the dissolution of marriage process. At any time, you may, and are encouraged to ask questions of me as you move through this process.

DEBTOR RESPONSIBILITY

There are essentially three (3) major areas of concern in a Dissolution of Marriage matter, 1) the distribution of your assets/debts of your marriage, 2) the determination of custody, support and visitation of your minor child(ren), and 3) the legal termination of your marriage from your spouse. I will give a brief synopsis of each.

1. The assets and debts of the marriage must be split between you and your spouse. The law presumes that the assets/debts will be split evenly between the husband and wife. There are legal reasons to deviate from that 50/50 presumption, but deviation is not always done, especially with certain judges. For example, let's say that you own a home worth $100, 000 dollars, you owe $50,000 on the mortgage, this means that the home has a net worth, or equity of $50,000 ($100,000-$50,000 = $50,000). Further, let us assume further that the marriage has $30,000 in credit card debt, and that one party had $40,000 in a retirement program such as a 401-K or pension. The analysis would look like this:

Home:             + $50,000

Credit Card:  - $30,000

Retirement:  + $40,000   

          = + $60,000 net marital assets

This means that in most instances, the parties shall split evenly $60,000 regardless who "owns" the asset, who incurred the debt, or who earned the asset.

This could be accomplished by each party receiving a net $30,000.

Example:

Wife keeps the home worth $50,000, and pays $20,000 in credit card debt which results in $30,000 net equity to Wife ($50,000 - $20,000 =$30,000)

Husband keeps his retirement worth $40,000, and pays $10,000 in credit card debt which results in a net equity of $30,000 to Husband ($40,000 -$10,000 = $30,000)

2. The custody of your children must be determined. The possibilities and diversity of this area cannot be covered thoroughly in this document, but I will endeavor to give the main points. I will start out by simply stating the law in summary fashion.

a) The law presumes that neither parent is more capable, or more desirable to be the custodial parent of the minor child(ren) of the marriage.

b) A Mother does not have to be proven to be unfit for the Father to be awarded custody of the minor children.

c) The court is to determine the best interest of the minor child(ren) when it determines which parent is to be awarded custody of the child(ren).

d) The parent, who is not awarded custody, will almost always be awarded visitation pursuant to the Indiana Parenting Time Guidelines as adopted by the Indiana Supreme Court. The guidelines essentially award the non-custodial parent every other weekend, one evening per week, and 1/2 of the summer. Many other matters are addressed therein, and you will be given a copy for your review.

e) Child Support is based upon the parent's respective incomes, not only your actual income but your income earning potential. This means if you are working under your potential, the income you are capable of earning may be used to determine your child support, or your spouse's.

f) Child support cannot be waived by you, or your spouse, or by the court. Child support belongs to your child(ren), and they cannot be divested of child support.

g) Child support, in most cases must be paid to the clerk's office, not to the custodial parent directly. Payments to the clerk of the court creates a paper trail which prevents any question regarding the amount of child support paid, as it is an official record of the court upon which it can rely.

Now for the practical side of the previous custody/visitation/child support matters:

a) Custody may be sole, meaning that one parent has all the say regarding the child(ren)'s upbringing to include medical, educational, and religious matters. The non-custodial parent has no say in such matters.

b) Custody may be joint legal with one parent having primary physical custody. This means that both parents share equal rights to the matters of upbringing to include medical, educational, and religious matters, but the child(ren) live with one parent and the other parent visits, usually pursuant to the Indiana Parenting Time Guidelines as previously discussed. In this case, the visiting parent pays guideline child support in the same way a noncustodial parent would who has no custodial rights.

c) Joint physical custody is when both parents share in the upbringing to include medical, educational, and religious matters, and the child(ren) live equally, or nearly equally with both parents. Child support is determined by each parent paying the other child support, then taking the difference, with the net difference paid to the lower income earning parent. Example, if Father was to pay Mother $100 per week to support a child, and the Mother was to pay Father $50 per week to support the same child, Father would pay $50 to Mother (the difference) per week on a shared physical custodial arrangement.

d) Visitation can be deviated from the Guidelines, but reason must be shown. This can result in a decrease, or increase of visitation for the visiting parent.

e) Child support calculations are based upon very strict calculations and the numbers used for income are an essential variable in that calculation which creates a certain amount of variability in the resultant child support. There are other variables such as visitation credit, daycare costs, and insurance premiums, etc. for the child(ren). Although the court can deviate from the child support guidelines, the court must state its rational for doing so, and it is very rare for the court to do so.

3. Indiana is a no fault Dissolution of Marriage state. In other words, if you or your spouse wants a Dissolution of Marriage, it will be granted.

Procedure

If you are in my office for the first stage of your Dissolution of Marriage. The next step is to gather information. The next stage might be a provisional hearing or agreement. A provisional order (temporary order) is an order of the court, ordering temporary child custody, visitation, child support; temporary maintenance; and temporary possession of the marital residence and other property. A provisional order is not mandatory, and will be had only if a party requests one, and as with most legal matters, the provisional matters can be resolved by agreement, or a court hearing.

In almost every county in Indiana, the court systems require that all parents with children going through a Dissolution of Marriage submit themselves to a counseling session or sessions with a design in mind to assist the parents with children of a marriage which is dissolving, with the all too often present difficulties the children may encounter during this process. In other words, if you have children of your marriage, you may be required to attend a court ordered course to assist you, your spouse and your children in this Dissolution of Marriage. You will need to provide proof of your attendance in this program to my office, which I will file with the court. If this is not done by you or your spouse, the Dissolution of Marriage may not be granted. The party who fails to attend the class may be found in contempt of court, and among many remedies of which the court is entitled to, the court can place the parent who fails to attend the class in jail for failure to abide by the court's orders.

The next step is the discovery and the waiting stage. Discovery is the process of gathering information. There are rules concerning this procedure which I must follow to obtain the information. You may be required to gather information as well, regarding your assets and debts.

The last step is settlement, or the court's final order. Your marriage cannot be dissolved prior to 60 days from the date that the Petition for Dissolution of Marriage is filed with the court's clerk . After the 60-day period, and often much later, the parties may reach an agreement, reduce it to written document, and tender it for approval by the court after which the process is complete. Of course, not all matters are resolved so easily. If an agreement cannot be reached, or if the court does not accept the parties tendered agreement, the matter must be litigated before a judge for resolution. If that happens, you and your spouse, with attorneys, appear in court and argue the case. If custody of the children is at issue, then your child(ren) may either testify or speak to the judge in his or her chambers. This is called an in-camera interview. The decision of the judge is final, and can only be vacated, modified or in any way changed by appealing to the Indiana Court of Appeals within 30 days from the date of the order. This is an expensive process and is rarely advisable, as the court has wide discretion (decision making authority) in family law matters. The court will have only a few hours, bridled by the rules of evidence, to decide the fate of your child(ren), and your foreseeable financial future. Thus, it is generally best to resolve a Dissolution of Marriage matter by agreement of the parties.