Indiana Divorce Law

Divorce and Legal Separation in Indiana




Divorce and Legal Separation in Indiana

Indiana Divorce Basics

Divorce in Indiana is legally referred to as Dissolution of Marriage.

Residency Requirement:

To file for a divorce or legal separation, either party must be a resident of Indiana or stationed at a U.S. military installation within the state for six months immediately preceding the filing of the petition. At the time of filing either party must be a resident of the county or stationed at a U.S. military installation within the county where the petition is filed for three months immediately preceding the filing.

Filing:

A Petition for Dissolution of Marriage may be filed in Domestic relations court in the county where the party is a resident.

At least 60 days after a Petition for Dissolution is filed, the court may enter a summary dissolution decree without holding a final hearing if the Petition (filing spouse) has filed verified pleadings signed by both parties with the court containing the following:
  • A written waiver of final hearing; and
  • Either: a statement that there are no contested issues in the action or a written agreement that settles any contested issues between the parties.
Spouse’s Name:

A woman who desires the restoration of her maiden name must set out the name she desires to be restored to her in her Petition for Dissolution as part of the relief sought. The court shall grant the name change upon entering the decree of dissolution.


Legal Grounds for Divorce

The statutory grounds for divorce in Indiana are as follows:
      1. Irretrievable breakdown of the marriage;

      2. A felony conviction by either of the parties, after entering into the marriage;

      3. Impotency, existing at the time of the marriage; and

      4. Incurable insanity of either party for a period of at least two years.

Annulment

The following void marriages, prohibited by Indiana law:
  • Two individuals may not marry each other if they are more closely related than second cousins, unless the individuals are first cousins and both parties are at least 65 years of age;
  • Either party to the marriage already has a husband or wife who is still alive;
  • Common law marriages entered into after January 1, 1958; and
  • The parties to the marriage are residents of Indiana, had their marriage solemnized in another state with the intent to evade state law subsequently returned to Indiana and reside in Indiana without having established residence in another state in good faith, return to Indiana and reside in state after the marriage is solemnized.
The following are voidable marriages:
  • Either individual is younger than 18 years of age, unless both parties are at least 17 years of age and have received consent from a parent or guardian, or the female is at least 15 years of age and is pregnant or a mother and the male is at least 15 years of age and is either the father of the expected father of the expected child of the female or the father of the female’s child;
  • Either party was mentally incompetent when the marriage was solemnized; and
  • The marriage was brought about through fraud on the part of one of the parties to the marriage.
An incapable party due to age or mental capacity, and an alleged victim of fraud may file an action to annul the marriage in a court that has jurisdiction over the action. However, to file for annulment, after the discovery of the alleged fraud, the alleged victim must not have continues to cohabit with the other party.

A circuit or superior court has jurisdiction over actions to annul voidable marriages.

Property Division

Indiana is an equitable division state. In an action for dissolution of marriage, the court shall divide the property of the parties whether owned by either spouse before the marriage, acquired by either spouse in his/her own right after the marriage and before final separation of the parties, or acquired by their joint efforts.

The court shall divide the property fair and reasonably in the following manner:
  • Division of property in kind;
  • Setting the property or parts of the property over to one of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;
  • Ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or
  • Ordering the distribution of pension or retirement benefits that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.
The court will generally show a preference towards equal division of the marital property as being just and reasonable. However, consideration of the following factors may overcome the court’s presumption:
  • The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing;
  • The extent to which the property was acquired by each spouse before marriage, or through inheritance or gift;
  • 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;
  • The conduct of the parties during the marriage as related to the disposition or dissipation of their property;
  • The earnings or earning ability of the parties as related to final division of property and a final determination of the property rights of the parties; and
  • The tax consequences of the property disposition with respect to the present and future economic circumstances of each party.
If the court finds there is little or no marital property, it may award either spouse a money judgment not limited to the property existing at the time of final separation. However, this award may be made only for the financial contribution of one spouse towards tuition, books, and laboratory fees for the postsecondary education of the other spouse.

Maintenance

A court may consider the following factors when determining an award of maintenance:
  • Whether the requesting spouse is physically or mentally incapacitated to the extent that his/her ability to support him/herself is materially affected;
  • Whether the requesting spouse lacks sufficient property to provide for his/her needs and he/she is the custodian of a child whose physical or mental incapacity requires the custodial parent to forgo employment;
  • The educational level of each spouse at the time of the marriage and at the time the action is commenced;
  • Whether an interruption in the education, training, or employment of the requesting spouse occurred during the marriage as a result of homemaking or child care responsibilities, or both;
  • The earning capacity of each spouse, including education background, training, employment skills, work experience, and length of presence in or absence from the job market; and
  • The time and expense necessary to acquire sufficient education or training to enable the requesting spouse to find appropriate employment.
The court may award maintenance for a set period of time, as the situation warrants, or may find in favor of rehabilitative maintenance for a period of time that the court considers appropriate, but not to exceed three years from the date of the final decree.

Child Custody and Support

Custody:

The court shall determine custody and enter a custody order in accordance with the best interests of the child. When making this determination, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
  • The age and sex of the child;
  • The wishes of the child’s parent(s);
  • The wishes of the child, with more consideration given to the child’s wishes if he/she is at least 14 years of age;
  • The interaction and interrelationship of the child with the child’s parent(s), siblings, and any other person who may significantly affect the child’s best interests;
  • The child’s adjustment to his/her hoe, school, and community;
  • The mental and physical health of all individuals involved;
  • Evidence of a pattern of domestic or family violence by either parent; and
  • Evidence that the child has been cared for by a de facto custodian.
If evidence that the child has been cared for by a de facto custodian is sufficient, the court shall also consider the following factors:
  • The wishes of the child’s de facto custodian;
  • The extent to which the child has been cared for, nurtured, and supported by the de facto custodian;
  • The intent of the child’s parent in placing the child with the de facto custodian; and
  • The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. An award of joint legal custody does not require an equal division of physical custody of the child.

In determining whether an award of joint legal custody 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 the following:
  • The fitness and suitability of each of the persons awarded joint custody;
  • Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
  • The wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years of age;
  • Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
  • Whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so; and
  • The nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
Indiana’s Parenting Time guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent.

A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.

Parenting time and domestic or family violence:

If a court finds that a non-custodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the non-custodial parent’s child, the court shall order that the non-custodial parent’s parenting time with the child must be supervised for at least one year and not more than two years immediately following the crime involving domestic or family violence or until the child becomes emancipated, whichever occurs first.

Support:

In an action for dissolution of marriage or legal separation, the court may order either parent or both parents to pay any reasonable amount for support of a child without regard to marital misconduct, after considering all relevant factors, including the following:
  • The financial resources of the custodial parent;
  • The standard of living the child would have enjoyed if the marriage had not been dissolved, or the separation had not been ordered;
  • The physical or mental condition of the child and the child’s educational needs; and
  • The financial resources and needs of the non-custodial parent.
A child support order must require either parent or both parents to provide medical support for the child through health insurance coverage if available to the parent at a reasonable cost.

The child support order or an educational support order may also include the following, where appropriate:
  • Amounts for the child’s education in elementary and secondary schools and at postsecondary educational institutions, taking into account the child’s aptitude and ability, the child’s reasonable ability to contribute to educational expenses through work, loans and other sources of financial aid, and each parents ability to pay these expenses;
  • Special medical, hospital, or dental expenses necessary to serve the best interests of the child; and
  • Fees mandated under Title IV-D of the federal Social Security Act.
If the court orders support for a child’s educational expenses at a postsecondary educational institution, it shall reduce other child support for that child that is duplicated by the educational support order and would otherwise be paid to the custodial parent.

The court shall order a custodial parent who receives child support to obtain an account at a financial institution unless the custodial parent files a written objection before the child support order is issued and the court finds that good cause exists to exempt the custodial parent from the account requirement.

Indiana uses the Income Shares Model for calculating child support. The formula uses the weekly gross income of the parents and the number of children for whom support will be ordered, with deductions for child support paid to other children and maintenance paid to other spouses. Acceptable adjustments include obligations for post-secondary education, work-related child care expenses, children’s health insurance premiums and parenting time credit.

The child support obligation terminates when the child becomes 21 years of age unless any of the following conditions occurs:
  • The child is emancipated before becoming 21 years of age; the child support, with the exception of any educational support order, terminates at the time of emancipation;
  • The child is incapacitated; the child support will continue during the incapacity or until further order of the court; or
  • The child is at least 18 years of age, has not attended a secondary school or postsecondary educational institution for the prior four months and is not enrolled in a secondary school or postsecondary educational institution and is capable of supporting his/herself through employment.
If the 18 year old child is only partially supporting or is capable of only partially supporting him/herself, the court may order that the support be modified, rather than terminated

Legal Separation

Proceedings for Legal Separation must comply with the Indiana Rules of Civil Procedure. A decree for legal separation may be entered if the conditions in or circumstances of the marriage make it intolerable for both parties to live together, yet the marriage should be maintained.

In an action for dissolution of marriage or legal separation, either party may file a motion for any of the following:
  • Temporary maintenance;
  • Temporary support or custody of a child of the marriage entitled to support;
  • Possession of property;
  • Counseling; and
  • A protective order.
Counseling:

The court may require the parties to seek counseling for themselves or for a child of the parties under the terms and conditions that the court considers appropriate if either of the following occurs:
  • Either party makes a motion for counseling in an effort to improve conditions of their marriage;
  • One of the parties, a child of the parties, the child’s guardian ad litem, a court appointed special advocate, or the court, makes a motion for counseling for the child; or
  • The court makes a motion for counseling for parties who are the parents of a child less than 18 years of age.
The court may not require joint counseling of the parties without the consent of both parties or if there is evidence that the other party has demonstrated a pattern of domestic or family violence against a family or household member.

Links to State Resources

  • Child Support Calculator

    Indiana Child Support Calculator provided by Indiana Courts, based on current guidelines.

  • Child Support Rules and Guidelines

    Text of Indiana Rules of Court: Child Support Rules and Guidelines.

  • Court Forms: Divorce With Children and With an Agreement

    Instructions, information and forms for non-military personnel filing for Divorce when there are children of the marriage, but the wife is not pregnant with the husband’s child, and both parties have an agreement on all issues. Part of the self-service Legal Center provided by the Indiana courts.

  • Court Forms: Divorce With Children and Without an Agreement

    Instructions, information and forms non-military personnel for filing for Divorce when there are children of the marriage, but the wife is not pregnant with the spouse’s child and the parties do not have an agreement on all issues. Part of the self-service Legal Center provided by the Indiana courts.

  • Court Forms: Divorce Without Children and With an Agreement

    Instructions, information and forms for non-military personnel filing for Divorce when there are no children of the marriage, the wife is not pregnant with the husband’s child, and both parties have an agreement on all issues. Part of the self-service Legal Center provided by the Indiana courts.

  • Court Forms: Divorce Without Children and Without an Agreement

    Instructions, information and forms for non-military personnel filing for Divorce when there are no children of the marriage, the wife is not pregnant with the husband’s child, and the parties do not have an agreement on all issues. Part of the self-service Legal Center provided by the Indiana courts.

  • Indiana Code, Title 31 – Family Law and Juvenile Law

    Links to text of Indiana statutes dealing with Family and Juvenile Law, includes Marriage, Domestic Relations, Parent-Child Relationship, Dissolution of Marriage and Legal Separation, Child Support and Custody and more.

  • Indiana Rules of Civil Procedure

    Texts of Rules of Civil Procedure regarding service of civil complaints.

  • Motion for Fee Waiver Form

    Instructions, information and forms for persons filing for divorce who are indigent and unable to pay filing fees and other expenses associated with the documents to be submitted to the court.

  • Parenting Time Guidelines

    Text of Indiana Rules of Court: Parenting time guidelines.


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