Broadly speaking, divorce is brought in civil court. The factual and legal issues are decided by a judge applying the statutes comprising the Dissolution Act. These provisions create a civil lawsuit for divorce and cover the incident issues, which include assets/liabilities and custody.
The highly experiences Indiana divorce attorneys at Ciyou & Dixon, P.C. believe the key to all legal issues begins with understanding the law that applies to a given case. There are hundreds of divorce statutes with thousands of subparts. Yet through our teaching on the topic, we have come to view them as three central core legal blocks.
The first relate to whether an Indiana trial court can hear and decide the divorce action. In order for a divorce lawyer to be able to take your case, it must fall within jurisdiction. This requires the party filing a divorce be able to verify (swear) the following is the situation:
The second block embodies marital assets. In Indiana, the Legislature has adopted what is generally known as the “one-pot theory”. This means that any assets brought into the marriage by a single party is a marital asset, as well as those acquired during the marriage. Finally, a marital asset also includes any asset that was owned up to the date of filing.
Assets inherently involve liabilities brought into the marriage, acquired during the marriage, or upon separation. Under the law, the Legislature has directed the trial court to divide the assets in a just and reasonable manner.
As a presumption, this is legally equal. There are all sorts of reasons trial courts may deviate from a presumed equal division under the facts of any case, including, but not limited to the following:
Except for maintenance paid after the divorce, which is in limited cases, the property division is final after 30 days, or the time for a motion to correct errors or appeal passes. This means that for the most part, property issues are never re-litigated by their divorce lawyers.
This division is once and for all. However, if a party does follow the property division, the trial court can enforce it through contempt and otherwise.
In every case, the two blocks of jurisdiction and asset and liability division will have to be addressed for the divorce to be filed and finalized. In cases where the parties have children, a third block is present. This is child custody.
As a general rule, the court is to apportion physical and legal custody. Physical custody is where a child will sleep at night. The parent who is not the physical custodian will have parenting time. This is typically every other weekend, one night a week, alternating holidays, and one-half of the summer. This equates to approximately 98 overnights.
These are set out in a companion body of law called the Indiana Parenting Time Guidelines.
The court has the discretion to make a different parenting time arrangement. However, it cannot restrict and supervise a non-custodial parent’s time with the children, unless there is a risk of physical or emotional harm.
The non-custodial parent will also pay the other parent child support as a general rule. The weekly child support is also determined by a companion set of legal rules, the Indiana Child Support Rules and Guidelines. In theory, although not applied in practice, there is a possibility the custodial parent could be ordered to pay support to the non-custodial parent.
The other issue a trial court must decide is legal custody. Legal custody is the ability to make major life decisions about the children’s health, education, welfare, and maintenance. Where the parties are of like mindset and background, such as Catholic, this is typically ordered to be joint.
Nevertheless, if the parties cannot communicate and jointly make major decisions for the children, a trial court may award sole legal custody.
Custody matters often occur long-after the divorce is final. The trial court can and does hear these issues, which may range from child support modification to disputes about activities and ultimately when child support terminates (i.e., the child is an adult, able to support himself, and/or out of college).
This frames the building blocks or considerations of divorce law in Indiana. Obviously, with factual disputes and the complex emotional and other dynamics of divorce and custody matters–issues of the heart–this is never an easy matter. Ciyou & Dixon, P.C. divorce lawyers understand this.
May we partner with you on your divorce and custody matters?
Proven & experienced attorneys successfully advocating & resolving complex cases for over 25 years