Understanding Divorce, Step By Step
- Petition: It all starts with the filing of a petition for dissolution of marriage. The petition typically states the parties’ names, addresses, dates of birth, the date or marriage, date of separation, the children born of the marriage, whether or not the petitioner is requesting a provisional hearing, and a statement that the marriage will need to be dissolved due to irreconcilable differences. A divorce cannot be granted by the court until at least 60 days after the petition is filed.
- Provisional hearing: In some situations, the parties are disputing who should have custody and parenting time of their children until the divorce is finalized or cannot agree on possession of marital property, payment of debts, or support of children while the divorce is pending. In those situations, it is necessary to request the court to hold a provisional hearing to decide what rules will be in place while the divorce is pending.
- Discovery: The discovery process can include interrogatories, request for the production of documents, requests for admissions, and depositions. The point of the discovery process is to find out what assets the parties have, what each party is requesting in terms of child custody and parenting time, and what evidence each party plans to introduce in court. It is extremely important to conduct the necessary discovery to enable the attorneys to attempt to settle disputes without the necessity of a hearing and to be fully prepared for any hearing. Often times parties get angry because they are made to answer questions or provide documents. However, discovery is not a punishment, but an important tool to allow attorneys to prepare. It is important to take the discovery process seriously. Failure to participate in discovery can result in court sanctions and ultimately be very detrimental to the outcome of your case.
- Child support: Indiana law requires parents to support their children. Child support is governed by the Child Support Rules and Guidelines which are available here: https://www.in.gov/judiciary/rules/child_support/. Support is calculated via a formula and is based on the following: (1) the income of the parties, (2) expenses for the child(ren) such as child care and health insurance, and (3) the amount of parenting time of each party. A child support calculator is available for your reference here: https://mycourts.in.gov/csc/parents/.
- Child custody: In terms of custody, there are two main categories, legal custody and physical custody. Legal custody has to do with making child-rearing decision regarding topics such as education, health care, and religion. It is most common for parties to have joint legal custody where the parties attempt to discuss and work together to make child-rearing decisions. At times, however, the court will give sole legal custody to only one party. Physical custody has to do with where the child(ren) will reside the majority of the time and how much time they will spend with the noncustodial party. Many times, parties can agree on the parenting time schedule that is best for their child(ren). If they cannot agree then the judge will decide based upon what the judge determines to be in the best interests of the child(ren). Judges rely pretty heavily on the Indiana Parenting Time Guidelines available here: https://www.in.gov/judiciary/rules/parenting/. In very difficult cases or cases where there are allegations of abuse or instability, the court may appoint a guardian ad litem – which is essentially a legal advocate for the child(ren) to conduct an investigation and make recommendations to the court as to appropriate custody and parenting time.
- Settlement negotiations and possible agreement: At any stage in the process, parties are encouraged to find common ground on which they can agree. Some couples become so entrenched in fighting that the legal fees can exceed the value of the property that the parties are fighting over. Other times parties can spend a lot of time over a minor dispute when they agree on 95 percent of the important issues. A good attorney realizes that some times the parties are better off seeking to compromise and find an outcome that they can “live with” instead of fighting tooth and nail for what in hindsight seems like a minor issue.
- Mediation and possible agreement: If parties are unable to resolve differences on their own, the court may order the parties to engage in mediation. Mediation is the process where the parties and their respective attorneys meet with a mediator who has skill and training to help facilitate an agreement between the parties. There are a couple of reasons why courts do this and why mediation is becoming more standard in contested divorces and family law cases. First of all when parties can reach their own agreement – as opposed to being told what to do by a stranger in a black robe – the parties can be flexible and are in a better position to do what works in their particular circumstances and are better able to work together to co-parent afterward. Secondly, most courts are congested. It can take months at times to get a hearing date. By ordering parties to mediation, the courts end up hearing fewer contested cases and it frees up the court’s calendar to deal with issues that the parties cannot resolve.
- Filing agreement with court: Assuming that we are successful in coming to an agreement, the next step in the process is to draft a settlement agreement and other necessary documents and file them with the court. The vast majority of the time the court will approve a parties agreement without changes and without the need to attend a hearing. Many families appreciate that they can potentially resolve their differences and never have to set foot into a courtroom, take off work to attend a hearing, or lose sleep the night before a scary hearing.
- Contested final hearing: When the parties cannot agree on all matters, it becomes necessary to have a contested final hearing and then the judge will decide the disputed issues. It is important to conduct the necessary discovery and to meet with your client before a hearing to discuss your concerns and fact pattern of the situation. Going to court for a contested divorce is never fun and is often scary and dramatic. But sometimes a contested hearing is necessary to protect you and your family. Having an experienced trial lawyer on your side can make the difference between winning and losing your argument and getting a good or bad ruling from the court.
- Ongoing custody, parenting time and support issues and modifications: Even after a divorce is final if the parties have children together, there are often ongoing issues that will require additional legal action. It is appropriate to modify child support as circumstances change regarding either the income, expenses or parenting time of the parties. Other times, it will be necessary to modify custody or parenting time due to changes in the lifestyles of the parties or changes with the children. Finally, there will be a need to deal with college expenses and the ultimate emancipation of the children. You need a knowledgeable attorney that can tell you what to expect in the future and help you to deal with life changes as they occur.
The First Step Is To Speak With A Lawyer
As you can see above, divorce can, unfortunately, be a long and complicated process. But you don’t have to navigate that process alone. It’s my job to provide timely and thorough answers to all of your questions so you understand your options and can make important decisions with confidence.