DIVORCE LAW

Roseann

Divorce

Concerned that your marriage has reached the end? No doubt this is a very emotional time in your life. A divorce is a life-altering event. Whether you are the one who wants to file first, or your spouse has already filed against you, you need sound advice. The end of a marriage can be legally complex, even if it has been a very short marriage. The best decision you can make is to consult with an attorney. During a divorce proceeding emotions are heightened and can lead to poor decisions on the part of both parties involved.

This is when the objective views of an attorney can be your best asset. It's already overwhelming for you - let us take care of the details and fight for what you deserve.

You want to know if your future will be secure. Contact us today. We're here to help.

Answers to Frequently asked Questions:

1. Do I have to "prove there are grounds" for a divorce?

Indiana is a "no-fault" divorce state. The court will grant a divorce upon the showing that you and your spouse have irreconcilable differences that have lead to a breakdown in the marital relationship.

2. How much will my divorce cost?

Attorneys in Indiana charge an hourly rate. I offer a free telephonic consultation to briefly discuss your case. It is difficult to say with certainty what the total cost will be, but I will try to provide you with an idea based on what you tell me. We can also discuss a retainer cost and my hourly rate. However, keep in mind that your spouse's behavior will have an impact on time and, therefore, cost.

3. How long will it take to get divorced?

There are many factors that determine how long your divorce will take to complete. A lot will depend on the behavior of your spouse, and you as well. If one or both of you is unable to reach an agreement or is litigious, the case will take longer and cost more. Unfortunately, the behavior of the spouses' lawyer may also lengthen the process. An uncontested divorce may take a little over sixty days. A highly contested case may take a year or longer.

4. How will our property and debts be divided?

The court has wide discretion in deciding how marital assets and debts will be divided. Property acquired during the marriage as well as property owned before the marriage may be considered in the court's determination. Pensions, IRA's, 401K's, stocks, collectibles and tools are also considered to be marital assets. The Indiana statutes presume a 50/50 division of assets and debts. The court may consider factors such as contributions to the marital estate, financial resources, needs, income potential, and the career potential of each spouse. If you and your spouse cannot agree on how the assets and debts will be divided, the court will make the final determination.

5. Who will have custody of the children?

Typically, children remain with the primary caregiver parent. This is generally the parent who feeds the children, attends the school conferences, and takes the children to the doctor. However, this is not set in stone, and the court may award custody depending on the "best interests of the child." Unless there is an agreement or a compelling reason, generally one parent will have primary physical custody and the other parent will have parenting time, according to the Indiana Parenting Time Guidelines. There are, however, situations where parents may wish to share legal and physical custody of their child. When you come to my office for our first meeting, we will discuss what type of custody is in the best interest of your child.

A parent who later wants a change in custody must show that there has been a substantial change in circumstances and that a new arrangement is in the best interests of the children.

6. What about support for the children and spouse?

Child support is mandated pursuant to the Indiana Child Support Guidelines and can be calculated based on you and your spouse's gross incomes, as well as some additional factors. Indiana is not an "alimony" state. However, the court will frequently order that both you and your spouse continue to support the home and family financially as you have been, until the divorce is final. This is accomplished by a provisional order of the court. The provisional order can be agreed to by the parties, or it can be ordered by the court.

Sometimes, if your spouse is disabled, you may be required to provide for your spouse financially. Spousal maintenance awards are usually a combination of the needs of the parties and a percentage of the non-disabled spouse's income. The court will consider many factors when making a determination of ongoing spousal maintenance.

Indiana requires wage withholding orders for the payment of child support. This helps to provide for accurate payment history and to prevent nonpayment. If payment is in arrears, you can file a Petition for Contempt Citation. A parent whose income has decreased may file for a downward modification of child support.

7. Who gets the pets?

You and your spouse may have a dog, a cat, or enough pets to qualify as a small zoo. Pet lovers may be very attached to their pets and the thought of going through a divorce and losing "custody" of your animal companion may be an impossible thought. The courts in Indiana view pets as property and value them at replacement cost only, without taking emotional attachment into consideration. You may also have to consider the costs associated with the pet to determine who can best provide for your animals food and veterinary care. On occasion, I have had clients who will share custody of an animal after the divorce is final. This is unusual, but it can be done if the parties are cooperative and willing to do so. If your spouse is uncooperative and will not come to an agreement, you may have to go to court for a brief hearing. However, judges would prefer that you and your spouse come to an agreement, rather than the court deciding who will have "custody" of the pets.

8. Can we date during the divorce?

Use common sense and be discreet until your divorce is final. If there are no children and you are separated, it probably will not prejudice the court against you, but it may anger your spouse and make negotiations more difficult. If you have children and custody is at issue, do not date if you are the custodial parent, at least in the presence of the children. If you do not have custody but do have visitation, your companion should not be with you when you have the children. Quite frankly, a new "significant other" is upsetting to children, particularly in the early stages of separation. Many judges will order that no third-party companion be present when the children are with you. It is truly the best practice to wait until your divorce is final.

9. My spouse will try to cheat me financially, so what can you do about it?

I suggest that you obtain copies of all of your and your spouse's financial assets and accounts at or near the time of the filing of the divorce. You may wish to photograph cars, gun and coin collections, equipment, etc., that can easily be removed from the home. Copies of these papers and photos should be given to a trusted friend or relative for safekeeping. You should also bring a copy with you when you come to my office. At the provisional hearing, we can request that the court order both parties not to sell, transfer or conceal assets. Unless you and your spouse agree on the value of assets, we can have them appraised to prevent them being undervalued. We can check sources of income from bank records, tax returns, credit card statements and the like; and consider lifestyle and expenditures to impute income. However, if your spouse is very devious and very determined, discovery may be costly - and still something may slip between the cracks. Additionally, if you and your spouse have a business, this may require a business valuation by an expert. Gathering the information prior to filing for divorce is the best plan to prevent a devious spouse from concealing assets.

10. Can my spouse get property I inherited?

In general, property you inherited will usually remain with you. If this is a short marriage, most judges like to leave family assets with the inheriting spouse. However, if you have intermingled inherited assets with jointly held assets, there may be a question as to whether these assets are now viewed as "joint" assets. All assets, however acquired, so long as they are acquired during the marriage, and regardless of title, are by statute subject to division. Do not assume that any asset is safe from division.

11. Will I be able to keep the health insurance that my spouse is providing?

Your children will remain covered by their current health insurance. The spouse providing the insurance MUST continue to provide coverage for you as well until the divorce is final. At that time, the divorced spouse may continue on the plan, but it is usually specified that the additional cost will be paid for by the divorced spouse. In that case, the federal COBRA regulations apply. They provide short-term coverage, usually eighteen months, at an immediate and substantial cost to the divorced spouse. Health insurance is an increasingly important issue: the cost is escalating, and fewer parties have low-cost, continued coverage.

12. Will I have to go to court?

If you and your spouse are in complete agreement, generally you will not have to go to court. If your spouse is uncooperative and will not participate, you may have to go to court for a brief hearing. However, your divorce probably will not involve a final trial. Most divorces settle, as they should. Trials are costly - both in terms of emotions and finances - and should only be a final resort to determine serious disputes, such as custody.

13. Can my spouse stop the divorce?

No, your spouse cannot stop the divorce. You cannot be forced to stay married to someone against your will. However, your spouse can delay the divorce if he or she is determined to be difficult.

14. Who pays for college?

College costs are a complex issue. You may both agree to share the costs in some equitable way depending on your financial circumstances at the time. In Indiana, your child may also be required to contribute one-third of the cost. In general, the court will not consider college expenses until your child is at least a junior in high school It is not a good idea to commit yourself too far in advance to a specific percentage or amount. Perhaps the dissolution agreement could contain language that you and your ex-spouse will begin negotiations at the start of the child's junior year in high school to avoid last minute agreements the following year. The court does have authority to enter orders until the child completes college, although what financial arrangements will be ordered varies from judge to judge.