If you’re a Hoosier facing divorce, you’re not alone. Indiana ranks among the highest in divorce rates in the U.S. You might be surprised to know that our state comes in at number six when it comes to divorces, according to 2016 Census Bureau data. But as common as divorce is in Indiana, much confusion still surrounds the process. From custody to estate planning to asset division, there is much at stake in a divorce situation, both personally and financially. Knowing the facts specific to our state can help you get through this stressful time faster and easier. That’s why we’ve broken down some of the most common myths surrounding divorce in Indiana from a legal perspective.
Myth #1: Alimony is available in Indiana.
In some states, a spouse can be ordered by the court to provide financial support for their ex-spouse after a divorce. Known as alimony, this arrangement has become less and less common in recent years. And in Indiana, alimony is not something a court will order during divorce proceedings in most circumstances. However, there is something called “spousal maintenance,” which can be an option in particular situations such as:
- A spouse is incapacitated and unable to support themselves financially
- The couple has an incapacitated child who requires one spouse to care for them
- One spouse has been out of work for some time (caring for children, for example) and needs time and resources to re-enter the workforce
Myth #2: One party has to be at fault.
Indiana is known as a “no-fault” divorce state. This means you can file for, and be granted, a divorce for non-specific reasons. Technically, Indiana allows for the following grounds for divorce:
- Irretrievable breakdown of the marriage
- Impotency at the time of the marriage
- Incurable insanity of one spouse
- A felony conviction by either party
Most commonly, the grounds for divorce are cited in our state as “irretrievable breakdown of the marriage.” No further details or reasons are required by law. This also means that courts are usually indifferent to any citation of fault when it comes to asset division unless criminal activity or potential harm to children is involved.
Myth #3: Both parties have to consent.
A divorce can be granted by a judge, even if one spouse has not agreed to it. This one-sided situation is quite common. While it doesn’t hinder the outcome, it can slow the process down if one spouse isn’t consenting to the divorce. In this case, a court hearing is required for a judge to make the final decree, even without the “permission” of the unwilling spouse.
Myth #4: Divorces can be granted on the spot.
Once the decision has been made for divorce, one or both parties are often eager to put this chapter behind them. Completely understandable, but unfortunately not the way the process works. In Indiana, there’s a statutory “cooling off” period of 60 days, once a divorce is filed with the courts. On the 61st day, it’s possible to file a settlement agreement (assuming both parties are on board) and waive the need for a final hearing. If a final hearing is necessary, this can be requested on day 61 and will be scheduled at a later date.
Myth #5: The spouse who files for divorce has an advantage.
People often assume that whoever takes the initiative to file for the divorce (known as the petitioner) will be treated preferably by the courts. This is not the case. There is no advantage to filing first, and conversely, no disadvantage to being the one not to file (known as the respondent). The petitioner does, however, get to choose the judge or court where the divorce is filed, but the respondent can always file a timely request to change this selection.
Myth #6: Each party keeps their individual assets and debts.
The issue of personal assets and debts can be a highly sensitive one when it comes to divorce. Indiana is known as a “one pot theory” state, meaning all of the marital assets—and debts, too—are usually combined and divided out according to what both parties decide. If parties can’t agree on the decision, a judge quite often grants a 50-50 division. Assets may include things like:
- Bank accounts or cash
- Life insurance
- Real estate
And something to keep in mind: when it comes to the division of assets and debts, timing matters. Most often, judges look at the date of the divorce filing to make division decisions. Assets and debts acquired after filing (even before a divorce is finalized) are typically not seen as mutually divisible by the court.
Myth #7: A 50-50 division of assets always applies.
While dividing assets (and debts) equally during a divorce is quite common, it’s not an absolute. There are some circumstances where a spouse can claim that a 50-50 split is unjust, including:
- One party received an inheritance or personal gift, especially if not commingled with marital assets and/or if received near filing
- A spouse has made highly irresponsible financial decisions during the marriage (e.g., gambling habits or uncontrollable shopping)
- Property acquired by one party before marriage
- Earning ability differences
While these are commonly cited as reasonable claims for divisions other than 50-50, there is no guarantee that a judge will award accordingly.
No one can completely take away the pain associated with divorce. But having a knowledgeable attorney can lighten the load. If you’re in this situation, we’d be honored to help you seek a swift and agreeable outcome. Please reach out at 765-637-9176.
The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.