How to File for Divorce in Indiana

INTRODUCTION Emotionally, divorce can be very difficult. Most couples are reluctant to end their marriages.  Some make the decision suddenly, some take months to decide to do it, and some live separated for years before divorcing.  I had a client once who had been married to a woman two months before I was born.  He had been living with another woman, raising a family, when one day, he had the embarrassing mission of informing the mother of his five children that he and she had never been married in the first place.  His companion of thirty years was not very pleased with this announcement, and she dragged him into my office encouraging him to remedy the situation as quickly as possible.  The man assured her that he had thought himself divorced from his first wife when he married her.     She must have believed him.  She wanted his divorce finalized in time for the real wedding she was planning after the court dissolved his first marriage.  It should have been interesting.  All five of the couple’s children were planning to attend. As devastating and emotionally charged as a decision to end a marriage can be, The procedure of divorce is fairly simple.  What causes divorces to become expensive and time consuming is disputes over issues such as child custody and support, parenting time, division of property and payment of marital debts.  If People don’t have these disputes, or settle these issues between themselves they can get a divorce without a lawyer’s intervention.  If you and your spouse cannot agree on any of the above issues you may need to seek legal counsel.  Much depends on how important the issue you are disputing is.  For instance, hiring an attorney to protect your interest in a 1993 Buick may not be a wise financial investment.  It might be cheaper and easier to turn the title over to your spouse.  However, if there is disagreement about something important, such as where the children should live, or how much of your spouse’s $100,000 401K you should be awarded, then you should consult an attorney before the divorce is granted.  If you need a protective order, you should go to your county clerk’s office and ask for assistance. Even if you ultimately end up in an attorney’s office, this book can help you by giving you the knowledge you will want to have to make well informed decisions in managing your case.  If you know what to expect, and what options are available to you, you can save yourself a lot in legal fees.  A well informed client can save his/her attorney a lot of work, and help cut down on billable hours. What I offer here is a bit like the old Kenny Rogers’ song. The information I provide should help you decide when “to hold ‘em”when “to fold them”, when “to walk away, and when “to run.” My name is Lucille P. Uttermohlen.  I have been an attorney for 24 years.  Much of my practice has been in family law.  Early in my career, I realized that divorce in Indiana was simple if the parties had no disputes.  By showing you how to fill out your own forms and how to negotiate your local courthouse, this book may help you avoid hiring counsel. Hopefully, this will work for you.  I remind you that each case is different, and if you and your spouse have a dispute about something important, you may still need an attorney.  CLERK OF COURT; DUTIES Because our courts are so busy, documents must be presented in a certain order, so that the court and its staff know where they can find specific information in each case. Most documents consist of a “caption”, the “body”, the “prayer”, or  in the case of a court order, the terms of the judgment, and the appropriate signatures.  It is the duty of the Clerk of the court to keep the court’s files in order so that they can be available to the court, and to the parties with a legal interest in a particular case.  The CCS  entry or “chronological case summary,” assist the court in recording its transactions.  The CCS entry tells the judge what documents have been filed in his/her court.  It also shows whether a hearing was requested, and, if so the time and date of that hearing.  Some counties do not require the parties to furnish their own “CCS” entries. You can ask your local circuit court clerk if you need to provide these forms.  See IC 33-17-2-1, “Sample CCS ENTRIES” THE CAPTION The caption appears on the top of most court documents.  Its function is to give the clerk a summary of the case.  It tells the court personnel who the parties are, and what kind of case they are litigating.  This aids the clerk in keeping the Court’s records organized into files.  The parties to the action are listed here.  In addition, the “Cause Number” appears in the caption.  It’s function is to identify the county, and the court where your case is filed.  The month and year of the case filing, its nature and its place in the court’s records are also identified in the caption.  No matter what you file with the court it is always a good idea to write your cause number on the document somewhere. Your court’s clerk will provide this “cause number” to you when you file your petition.  Most of the documents referred to in this book contain a caption.  The “Sample” documents will show you how the caption should look when you file your papers with the court. See IC 31-15-2-4 THE SUMMONS To obtain your divorce, it is first necessary to prove to the court that your spouse is aware of your petition for marriage dissolution.  The summons tells the court where your spouse can be located so that he/she can be “served with process”, which means he/she is given a copy of the divorce papers you filed.  The summons contains information the clerk, and sometimes the sheriff, needs to deliver a copy of your divorce papers to your spouse.  The court has to have proof that your spouse is aware that you wish to end your marriage.  If you know your spouse’s home or work address, you will probably serve him/her by registered or  certified mail.  If you know where he/she can be located, but he/she won’t sign for certified mail, you will have to have your local sheriff’s department deliver your summons and petition to him/her personally.  This form of service costs $13.00 over the filing fee at this writing. If you do not know where your spouse can be located, you can serve him/her by publication.  This means that you publish the summons in a newspaper of general circulation.  The summons appears three times in print.  The idea is that your spouse might read the notice, or, that a friend or family member might bring the divorce to his/her attention, thus giving him/her an opportunity to protect his/her interests. If it is necessary for you to serve your spouse by publication, it will cost you more money.  The amount depends on your local newspaper.  Some charge a fixed rate for legal notices, others charge by the word.  When your summons has been published three times, the newspaper staff should send proof of publication to you or the court so you will know that service has been successful.  If you receive this affidavit, make sure you file it at the clerk’s office when you request a final hearing.   If you don’t get at least a copy of it, call the newspaper and ask where it is.  This affidavit is what the judge will need to know he/she can proceed with your marriage dissolution when your spouse can’t be located. See “sample summons” and Trial Rule 4, 4.1, 4.12, 4.13 5, and IC 31-15-2-8 ) I have also provided a “Waiver of Summons” for those situations where the parties are able to cooperate with each other in ending their marriage.  Signed in front of a notary, this document will show the Court that your spouse is aware of the proceedings without having to use the services of the sheriff or the Post Office..  THE PETITION To understand your divorce petition you need to have a little knowledge about jurisdiction and venue.  Any circuit or superior court in the state of Indiana has jurisdiction over your divorce case.  This is to say that the judges of those courts have the power to grant your divorce, No matter where you live in the state, as long as you have lived in Indiana for at least six months.  If you and your spouse have filed for a legal separation in one court, the divorce petition has to be filed there as well.  Venue controls where you should file your divorce.  It is not necessary to go to the court that has venue.  You can file your divorce anywhere in the state as long as you and your spouse agree.  However the courts have a strong preference for filing in a county where you or your spouse have lived for the last three months.  If you file in a county where neither of you reside, and your spouse has not agreed to filing in a different county, your spouse can insist that the case be moved to a county where one of you lives, and you will have to pay another filing fee, plus attorney’s fees to move the case back to a county with proper venue. The first two paragraphs of your petition tell the Court where you and your spouse live and thus the court will know that you have satisfied Indiana’s residence requirements, and that it has the authority to grant your divorce.  Whether or not you have children is important to assist the court in considering matters of custody, child support and parenting time.   If you and your spouse had a child together who was born before the marriage, you would still include his or her information here.   If there is any doubt about the paternity of any child, you will need to have a “DNA test” while the divorce is pending.  If you wait until after your divorce is final, you will not be able to raise the issue of the child’s paternity later.  You can contact the local prosecutor’s office for assistance if you have reason to doubt your child’s paternity. Your spouse does not have any interest in property you acquire after the separation, as long as the property wasn’t acquired with joint funds.  Similarly, your debts are your own responsibility if you incur them after the separation for your own purposes. Thus, the court needs to know the date of your wedding as well as at least approximately when you separated, so this information is included in your petition.  The date your petition is filed is generally considered to be the date of separation for purposes of permanent property and debt disposition. Finally, you must tell the court what you want it to do.  Besides asking that your marriage be dissolved, you are requesting that the court enter orders for the care of any children of your marriage.  You are also requesting that the judge divide your property and debts fairly. See “sample petition” Indiana Trial Rule 3, IC 31-15-2-3, IC 31-15-2-5, IC 31-15-2-6 and IC 31-14-7-1.  PROVISIONAL ORDERS In Indiana, it is necessary to wait 60 days between the date the divorce petition is filed and the date the judge can grant the petition.  Because of this it may be advisable for you and your spouse to enter into an “agreed provisional order”.  If you have children, the provisional order would provide for their custody, support and payment of their medical debts.  If you do not have children, but you are concerned about payment of debts or possession of property while your divorce is pending, a provisional order is a good idea.   If you and your spouse are not fighting over anything, or you don’t have anything to fight over, you can skip this part of the process.  For further discussion of provisional orders, see “Motions”.  See “sample Provisional Order”. IC 31-15-4-1, IC 31-15-4-13, IC 31-15-4-14 and additional information on: MOTIONS MOTION FOR PROVISIONAL HEARING MOTION FOR CONTINUANCE MOTION FOR FINAL HEARING MOTION TO DISMISS THE DECREE PARENTING TIME AND CUSTODY CHILD SUPPORT PROPERTY AND DEBTS HIRING A LAWYER NEGOTIATIONS CUSTODY AND PARENTING TIME CHILD SUPPORT DEBTS AND PROPERTY REAL ESTATE AUTOMOBILES; and INSTRUCTIONS