Even if you hire an attorney to represent you in a Indiana divorce, it’s critical for you to have a basic understanding of divorce laws.
By getting educated, you can take a proactive role in protecting yourself. As an added benefit, you’ll also keep your legal fees down.
Here’s what you need to know:
Indiana is an equitable distribution state which means assets are divided fairly and equitably, but necessarily equally. Assets acquired both during a prior to a marriage may be subject to division in a divorce.
Indiana is only one of a handful of states that divide property acquired before marriage. Spouses need to execute a pre-nuptial agreement prior to marriage to ensure property is kept separate.
Property division is governed by several factors that are to be considered when dividing assets. These factors include:
Businesses are also considered marital property, but may be difficult to divide, although still subject to equitable distribution. In cases such as this, it may be possible to award the business to the spouse who is more involved in the business and make up the difference with other marital property going to the other spouse. The same principle holds true for retirement assets.
There is a presumption of a 50-50 split on debts in Indiana despite being an equitable distribution state. It is possible to make a case that debts should be divided differently, but you will need to convince a judge as to why this should be the case.
Judges do have leeway to deviate from a straight split if circumstances warrant it.
Gifts given to only one spouse in Indiana are considered separate property. A spouse must be able to prove that the gift was given only to them. In cases where gifts are commingled, they may become marital assets. Courts will have a certain amount of discretion to determine if a gift is a separate or a marital asset in these situations.
Property inherited by one spouse in Indiana during a marriage is separate and not considered marital property.
As is the case with gifts, if an inheritance is commingled with marital assets, it may become a marital asset as well. It is best to keep detailed records regarding inheritances and to keep those assets separate when possible. You may also protect an inheritance by having your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
All pensions, IRAs, 401Ks and retirement plans are treated as marital property in Indiana and subject to equitable distribution laws.
It may be possible to keep the entire amount of your pension is exchange for giving up the rights to other high-value assets, such as a home. You need to consider that an equitable distribution may not always result in a 50-50 split.
Legally splitting pensions and other retirement funds is a multiple step process. After the divorce decree or dissolution of marriage has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
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Indiana is an all property state, and this means marital property that is owned or acquired before or during a marriage is considered marital property. To keep an asset separate, the spouses will need to execute a pre-nuptial agreement prior to their marriage
There are several factors that will determine if spousal maintenance (alimony) in Indiana should be awarded or not. Spousal maintenance may be awarded for a set period of time, or there may be rehabilitative maintenance that will be awarded, but not for a period of longer than three years from the date of the final decree.
Factors determining maintenance include:
Indiana uses the Income Shares Model for calculating child support. This formula uses weekly gross income of the parents and the number of children for which support is required. Deductions are made for child support paid to other children and maintenance paid to other spouses.
Courts consider relevant factors such as the overall financial resources of each parent, the standard of living the child would have enjoyed if the marriage had not ended, the physical and mental condition of the child and the financial resources and needs of the non-custodial parent.
Child support must also include provisions for medical support through health insurance coverage if available at a reasonable cost.
If a parent misses a child support payment, the other parent can file a violation with the courts. At a hearing, the court will decide if nonpayment was willful or nonwillful and then decide if a money judgment should be awarded.
Child support ends when the child turns 21 unless the child is emancipated before that time, the child is incapacitated in which case support could continue indefinitely.
Support can end at 18 if the child has not attended a secondary school or postsecondary educational institution for the prior four months, is not enrolled in either, and is capable of supporting his/herself through employment. Support may be modified instead of terminated if an 18 year old can only partially support his or herself.
Indiana uses Parenting Time guidelines which subscribe to the belief that it is usually in a child’s best interests to have frequent and meaningful contact with each parent. A parent who is not granted primary custody is entitled to reasonable parenting time unless there are extenuating circumstances that could endanger the child, such as domestic violence or drug abuse.
Courts consider several factors when determining child custody in Indiana. Some of these include:
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By itself, substance abuse is not considered one of the grounds for divorce in Indiana. However, if the use of drugs or alcohol is present in a marriage it could impact parts of the divorce settlement. Specifically, any drug use that negatively impacts children or a parent’s ability to care for children will lessen the possibility of gaining custody.
Courts may still allow visitation with restrictions, such as supervised visits only or drugs screening prior to seeing the children.
Substance abuse should be documented if it could impact a divorce settlement. This can be done by testing, testimony from family members or from representatives of social services agencies, or other witnesses who can provide first-hand information and insights.
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized. These issues are set aside and decided separately at a later date.
Bifurcation of marital status is allowed in Indiana, but state law requires that both parties file a joint motion to bifurcate a marriage.
Bifurcation does have advantages, but couples may want to consider the cost and emotional implications of going through two court proceedings instead of one.
As part of the divorce process, both spouses must provide financial disclosures. This includes, assets, income and debts. This is so equitable distribution can take place in an appropriate way. Any attempt to hide assets could result in serious repercussions.
If one spouse suspects that the other is not forthcoming, there are legal remedies to compel the disclosure of assets to ensure a spouse receives the information to which they are legally entitled.
When a spouse files a petition for divorce in Indiana and the other spouse cannot be found or does not respond in a timely manner, the court can grant a divorce through a default judgment. A petitioner must conduct a good faith effort to prove that he or she has made a diligent effort to find or contact a spouse. The court will require these efforts to be documented.
If a spouse does not respond, they forfeit their right to contest any terms of the divorce, including important issues such as child custody, support, alimony and a division of assets and debts.
Domestic violence in Indiana can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other. It can play a factor in a divorce, but those actions are secondary to the immediate safety concerns of a spouse or children who may be in immediate danger.
When domestic violence is present in a marriage, a victim can seek immediate relief by requesting a Petition for Order of Protection and filing with a local court. A judge will be able to issue a temporary protection order that will last for 30 days until a full hearing can take place.
At that time a full protection order can be issued that will last for two years. It will evict the abuser from your residence, give you custody of any children, provide for supervised visitation, order support payments, and more.
When domestic violence is present, it will impact custody decisions and could result in the abuser having limited or no visitation privileges.
Indiana courts generally require that both parties maintain status quo when it comes to health insurance during a divorce. However, after a divorce is granted, this does not mean that health insurance is required to continue. In fact, most employers will not carry an ex-spouse after a divorce as a matter of policy.
If a child is covered by a spouse’s health insurance plan prior to the initiation of a divorce proceeding, the parent who holds the plan cannot cancel the policy while the divorce is still pending either. In fact, if it is reasonable, a parent will be required to carry health insurance for their children following a divorce as part of the settlement.
A spouse can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows a person to continue with their spouse’s current coverage for up to three years as long as they pay the full premium amount which can be very expensive without an employer underwriting part of the costs.
Infidelity and adultery take place when a spouse has sex voluntarily with someone other than their spouse while they are still married. In Indiana, this is not considered one of the grounds that can be used in a fault-based divorce. It will not have a bearing on whether a court decides to grant a divorce or not.
However, adultery may have an impact on whether or not to award alimony. Judges are allowed to consider marital misconduct as a factor when making decisions about alimony.
Many of the same rules apply to military divorces as they do to civilian divorces in Indiana. The key for many military members is Indiana’s residency requirement, which can be a bit of a challenge due to ongoing redeployments.
A service member must be able to demonstrate that they or their spouse have lived in Indiana or been stationed in the state for at least six months and have lived for at least three months in the county where they intend to file.
Once paperwork has been filed to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. When that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
In addition to Indiana property division laws, the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
The U.S. government will not recognize a division of a military pension if those terms are not met, but what may happen is that courts will assign other assets to a spouse that has an equal value to what the military pension may be worth.
Child support and spousal support are determined by state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a service-members pay and allowances if they are single.
Looking for more advice about divorce? Here are a few of our favorite resources:
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
