A lot of people thinking about going through a divorce in Indiana may wonder what issues will have to be addressed to finalize their divorce. This blog gives a brief explanation of the possible issues that may arise in your divorce. The 3 main issues are: 1) Property Division, 2) Spousal Maintenance, and 3) Child-Related Issues.
When you file for a divorce, nearly every asset of the parties, whether titled in one party’s name, the other’s name, or titled jointly in the parties’ names, will be up for division by the court. For a more detailed explanation on property division in Indiana, see my blog from March 17, 2016, titled: A Look at Property Division in a Divorce in Indiana. To summarize that blog, there is a presumption of an equal, or 50/50, division of assets and debts of the parties. Indiana Code 31-15-7-4 defines what property is eligible for division and how the court may divide such property. However, Indiana law allows for parties to present evidence to rebut the presumption of a 50/50 split. Such factors include: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing; (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift; (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children; (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property; and (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties. Indiana Code 31-15-7-5 defines these factors; however, the statute allows for a court to consider additional factors not listed under that law and so it is important to consult with an attorney to see if there are additional factors that may apply in your case.
Indiana law does not use the term “alimony” anywhere in its divorce laws. Instead, Indiana has what is called spousal maintenance. Unfortunately, the way Indiana defines spousal maintenance only allows parties to recover maintenance in much more limited circumstances than other states that have broader alimony laws. As such, Indiana’s spousal maintenance laws are not very friendly to the lesser earning or non-working spouse.
Once you file for divorce, a party may seek temporary maintenance, which only lasts until the divorce is finalized. This is much easier to obtain than spousal maintenance as a final result of the divorce. Such temporary maintenance may be ordered to help maintain the status quo of the parties during the divorce proceedings. For example, if only one spouse was employed at the time of filing the divorce, the non-working spouse may ask for temporary maintenance to help with the marital and household bills and debts or for living expenses.
As a final result of a divorce, there are only 3 situations in which a party may be awarded spousal maintenance. Those 3 situations are defined in Indiana Code 31-15-7-2, which is as follows:
Indiana Code – Section 31-15-7-2: Findings Concerning Maintenance: A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.
(2) If the court finds that:
(A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and
(B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment;
the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.
(3) After considering:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
a court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree.
If you and your spouse have minor children, then you will be faced with 3 main child-related issues: 1) custody, 2) parenting time, and 3) child support.
Custody is broken down into 2 categories: 1) legal custody and 2) physical custody. If a party has legal custody, that means the party can make the major life decisions for the children. The main major life decisions include education, medical treatment, and religion. There are only 2 outcomes in a divorce regarding legal custody; the parties have joint legal custody or else one of the parties is awarded sole legal custody. Indiana Code 31-17-2-15 defines the factors a court considers when making a legal custody determination:
Indiana Code – Section 31-17-2-15: Joint Legal Custody; Matters Considered in Making Award: In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
Physical custody, on the other hand, is what most people think of when they state they want to have custody of the children. Physical custody is more of a sliding-scale than legal custody. You are considered the primary physical custodian if you have the children more than 50% of the time and the parties are considered to have joint physical custody if each is awarded parenting time with the children on a 50/50 basis. Sole physical custody is rarely awarded in Indiana as that would mean the non-custodial parent would have absolutely no parenting time awarded to him/her. When a court makes a physical custody determination it uses the ‘best interests of the child standard’ and so considers the following factors:
Indiana Code – Section 31-17-2-8: Custody Order: The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(B) school; and
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
Parenting Time is determined using the factors as outlined in the custody order, along with endless other factors, including work schedules, distance between the parties’ residences, who was the primary caretaker of the children, etc. The Indiana legislature has adopted a pretty extensive document called the Indiana Parenting Time Guidelines, which can be found here. These Guidelines are useful for a parent who is contemplating a divorce. It defines the minimum parenting time standard for non-custodial parents in most cases and explains how to handle numerous different parenting and parenting time related issues.
Child Support can include a number of different orders. The traditional child support order is basically a calculation used to determine a weekly obligation to be paid by the non-custodial parent to the custodial parent. The calculation takes into consideration both of the parties’ gross weekly incomes, whether either party has any subsequently born children to the children of the marriage or has a child support order or duty for any prior born children, whether either party has a maintenance or alimony obligation or receives maintenance of alimony, work-related daycare expenses, the premiums to cover the children with health, dental, and/or vision insurance, and the amount of overnights the non-custodial parent is awarded. In addition to the weekly child support obligation, the court can make a determination as to who is required to carry insurance for the children, how extracurricular activity and uninsured health care expenses will be split by the parties, who will get to claim the children as dependents for income tax purposes, and contribution to college or post-secondary educational expenses.
As all of these issues are very fact specific, it is important that you consult with a local attorney to assist you with your case. If you are considering filing for divorce, or have a custody or child support matter, feel free to contact Adam S. Lutzke Law Offices at (317) 258-7809, or at [email protected] for a free initial consultation.