While every divorce case is unique when it comes to property, assets, debts, incomes, child custody, and parenting time, in each of these categories, courts have a starting point, and lawyers will help to you to argue your position and move off the presumed starting place.
1. Property (assets and debts):
The Court presumes that of all property owned by the parties either before or during the marriage will be divided 50/50. There are exceptions to this general rule, including situations where one party entered the marriage with substantial property acquired years before the marriage, or one party makes substantially less income and needs more of the property from the marriage to have a stable building block for the future.
2. Child Custody:
The Court presumes both Mother and Father are equal in caring for the child, meaning, there should be no gender bias, and the question as to who maintains physical or legal custody of the child is what is in the child’s best interests, looking at factors such as the parent’s wishes, the child’s wishes, the age and sex of the child, the child’s adjustment to his or her school and community, the child’s relationship with extended family members, etc.
3. Parenting Time:
The Court presumes that the Indiana Parenting Time Guidelines apply to most cases. This means if one parent receives primary physical custody, the Court will often provide the noncustodial parent with parenting time pursuant to the Indiana Parenting Time Guidelines (usually one evening a week, and every other weekend). Certainly there are occasions where the noncustodial parent should have less time (if there is a risk of emotion or physical harm to the child), or more time (including joint, if the other parent has provided essentially equal or substantial care for the child up to the time the parties decided to divorce).
4. Child Support:
The Court presumes that the Indiana Child Support Guidelines apply. The Indiana Child Support Guidelines are based on an income shares model, which means that the parties support the child in a pro rata share based on their relative incomes. For example, if Dad makes $1,000 a week, and Mom makes $750 a week, Dad will provide 57% and Mom will provide 43% of the child’s financial support. There are several other factors, such as who caries health insurance for the child, daycare costs, and overnight time credit for the noncustodial (payor) parent, that will factor into the ultimate child support calculation.
We hope that you have found this information to be helpful in understanding some basic presumptions the trial court makes in divorce actions. These may not apply to your specific case. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.
