Family Law AdvisorŪ
Frequently Asked Questions
- Indiana Divorce Mediation FAQ's -
- Can I stop the divorce?
No. You can't stop it.
Can I slow it down?
There are delaying tactics you and your attorney can use to slow
the divorce down, like filing endless motions for discovery, asking
for continuances, and generally being uncooperative. However, it
is in your best interest not to do these things unnecessarily.
Your failure to cooperate in the process will cost you more in
attorney's fees, and annoy the judge, These tactics rarely lead to
more satisfactory settlements, and are most often
counterproductive.
If I don't want the divorce, can I make my spouse go to
marriage counseling?
Theoretically, you can. However, most judges are hesitant to force
people into counseling. They believe that a person who wants
counseling would do it on their own, and that a person who is
forced into counseling would not benefit from it. You and your
attorney can make the motion, but it is up to the judge whether or
not you will succeed.
It took two of us to marry. Why does it only take one of us to
divorce?
To obtain a marriage dissolution in Indiana, all you have to show
is that your marriage is "irretrievably broken". This means that
if one person is unhappy, he/she has a right to end the marriage,
whether or not the other spouse feels the same way.
Are there other grounds for divorce besides "irretrievable
Breakdown?"
Yes, but the other grounds are rarely, if ever used. They
include insanity, commission of a felony, and impotence. But Most
lawyers agree that "irretrievable breakdown" is the simplest ground
to prove. For "Irretrievable Breakdown, you only need to state
under oath that you don't want to stay married to this person. Why
go to the expense of proving your spouse is nuts, or impotent when
all you basically have to say is, I'm out of here"?
How long does it take to get a divorce in
Indiana?
Sixty days after your divorce petition is filed, the court has
the
jurisdiction it needs to finalize your divorce. However, factors
such as discovery motions and the judge's calendar can slow the
process down greatly. I have even seen divorces that take over a
year to conclude.
Do we have to wait for the judge to have time for a hearing to
finish our divorce?
No. If you and your spouse agree on issues such as child
custody, support, division of property and payment of debts, you
can file a waiver of final hearing and an agreed decree of marriage
dissolution. It may take the judge a day or two to read, approve
and sign your agreement, but, he/she can finalize the proceedings
for you on the 60th day.
Can the judge refuse to sign our decree if he/she does not like
the provisions it contains?
Yes. The judge can refuse to sign your decree if he/she does not
like its provisions. As a practical matter, the judge usually does
sign without protest. However, if your agreement is against public
policy, the judge can refuse to finalize your divorce until you
present a decree that he/she feels is proper.
What provisions in our divorce decree might be against public
policy?
A common example is when the parties agree that the father
will give up all of his visitation rights if the mother refrains
from demanding child support. Another, more absurd example would
be an agreement between the parties that their ten year old son is
emancipated, and that he is on his own for support. There are many
examples, but , in general, courts will approve agreements if the
parties seem to know what they are doing, and their agreements are
reasonable.
How do I start my divorce?
A Petition for Marriage Dissolution" and a summons are
the first papers you need to present to the court to start your
divorce proceeding.
What is a summons?
The summons advises your spouse that you wish to end your
marriage to him or her. It tells him/her about the 60 day waiting
period, and it advises him/her that failure to participate in the
proceedings can result in default judgment. The summons also tells
the clerk and/or sheriff's department where to locate your spouse
so that he/she can be made aware of the proceedings, either by
certified mail, or by delivery of the sheriff.
What if I don't know where he/she lives?
If you do not know where to locate your spouse, you would
serve him/her by publication. This means that the summons is
published in the local newspaper three times in the hope that
someone will tell your spouse that you plan to end your marriage to
him/her. It is not the best form of service since there is no
guarantee that your spouse will actually find out that the divorce
is pending. Thus, you need the judge's permission to use this form
of service. In short, certified mail and delivery by sheriff is
preferred.
What is the "petition"?
In the petition, you are telling the court a little about
your circumstances, and telling the judge what you want him or her
to do for you.
What information do I need for my petition?
Indiana law requires that you disclose certain personal
information in the petition. You must tell the court your name and
address, your spouses name and address, the date you were married,
the date you and your spouse separated, whether or not the wife is
pregnant. the names and birth dates of your children, and that
your marriage is irretrievably broken. You can also allege
violence on your spouse's part, or state that you believe your
spouse will dissipate marital property. (see restraining order)
Can I represent myself in my divorce?
You have a constitutional right to represent yourself in any
legal proceeding, providing that you are an adult, and that you are
competent. Whether or not you should do the job depends on how
complicated the issues in your divorce turn out to be. If there
are no children, debts or property, you probably don't need a
lawyer. If, however there are children, property and debts, you
probably will need a little help.
I am curious about Indiana divorce law,
and want to read the statute: Where should I go and what should I
read?
You can read this entertaining statute in "title 31"
under the Indiana Code. You can read this masterpiece at your
local courthouse. The courthouse maintains a library. It is
usually up to date. Ask the circuit court's secretary for help.
She, or someone she directs you to should be able to take you to
the code books, and show you the location of the statute. It would
be great material to read right before bed. Unfortunately, unless
you have about $1.00 per page for copying from the book, you will
have to stay in the courthouse to read the statute.
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