What Will Happen in My Divorce

By E. Thomas Kemp

Every divorce is different: What happened to a friend of yours may not happen in your case. However, gaining a better understanding of how the process works will increase your ability to see down the road to what the future has in store for you.

The main issues in a divorce are children, property and debts. However, there are several other issues that come up frequently in divorces such as payment of attorney fees (by or for the other spouse), permanent spousal maintenance, tax exemptions for the minor children, name changes, . . . etc. The following overview will apply to most cases filed in Indiana:

ORIGINAL PETITION

A divorce is commenced by the filing of a Verified Petition for Dissolution of Marriage. The Petition is required to contain certain information and must also include certain representations by the party. The Petition is accompanied by a $100.00 filing fee.

Once the Petition is filed, it assigned to a Court. If temporary orders are requested, the case then goes to Court Scheduling to set such a hearing. After processing at the Courthouse, your spouse muse be served with a copy of the paperwork. Typically, this is done by having a representative of the Sheriff hand your spouse the petition and summons. A summons is essentially a cover sheet that tells your spouse a lawsuit has been filed, and that there is a limited number of days in which a response can be made. In some instances, you may wish to have your spouse served with the papers by mail. However, this cannot be done if you have requested a Temporary Restraining Order.

In the State of Indiana, a court cannot enter a decree of dissolution of marriage until sixty (60) days have elapsed from the date of filing the petition.

PROVISIONAL ORDERS

Especially if there are children involved, there may be a need to obtain temporary orders from the court to handle certain issues while the case is pending. You may need a temporary restraining order (TRO) for protection and/or a temporary injunction to prevent the transfer or disposition of property. Once granted, these orders remain in effect throughout the case.

Temporary orders may also be needed to determine which spouse shall remain in the family home, who will be responsible payment of bills, who will have the temporary custody of the children, support of the children, attorney's fees, and potentially, the support of one of the parties.

If provisional orders are requested by either party, the court will set the matter for a brief hearing on the issues presented. Once issued, the provisional orders will remain in effect until the case is finalized. However, the court has the power to modify these orders in the appropriate circumstances.

In Wayne County, the courts have required the parties, by way of a local rule, to submit and exchange a financial disclosure form prior to the provisional hearing. The court will utilize the information contained in these forms to render a decision on the temporary issues.

DISCOVERY

Discovery is the process where the parties learn information relevant to the lawsuit. Obtaining this documentation is crucial to the resolution of the case. Delays in obtaining documentation about the assets and debts of the parties can cause significant delays in obtaining the divorce. Typically, the process is slowed down through a lack of understanding as to the import of this information. Occasionally, one party will see that it is in their benefit to prevent or delay the disclosure of certain information. There are several strategies and tactics for dealing with reluctant parties.

This information may be in the hands of the other party, or in the hands of third parties (like employers, banks, creditors, etc.). Some common discovery methods are Requests for Production of Documents, interrogatories (written questions answered under oath by parties), depositions (oral testimony before a court reporter); or requests for admissions. Whether your lawyer utilizes these methods will depend on a number of factors that they will discuss with you.

Unless the parties have very few assets, competent professional will typically appraise the property. This may include a real estate appraisal, appraisal of personal property (cars, furniture, jewelry, etc.), and valuation of pension and other financial assets.

CUSTODY

If disputes arise regarding the care and custody of the children, often, the court will order a custodial evaluation. Upon the request of either party, the Court can order a custodial evaluation to be performed by an independent agency. The purpose of an evaluation is for the professional to issue a report to the Court regarding the best interest of the minor child or children regarding his/her care and custody. The evaluator schedules appointments to meet with both parents independently as well as both parents with the child or children involved in the case.

The evaluator seeks to determine whether the parent has the basic skills necessary to provide care the children; whether either parent has some limitations in their lives, for example drug addiction, alcohol addiction, or anger management problems which would prevent them from appropriately caring for the child or children; and further whether the parent has developed a full and mutual relationship with the minor child or children.
Standard evaluations run between Six Hundred and One Thousand Dollars ($800.00 - $1,000.00). In some circumstances, it is necessary to engage the services of a more specialized evaluator. The fees for this type of service generally start around Fifteen Hundred Dollars ($1,500.00). Upon request, the Court can apportion these expenses between the parties based on their income.

Guardian Ad Litems (GAL) are individuals who are appointed by the Court to represent the interests of a child in legal proceedings. A GAL will work directly with the child and report to the Court on the child's best interests. Increasingly, GAL's are being used in divorce matters. Mainly, they serve to protect the children from the sometimes-bitter disputes that can occur between parents in a divorce. Occasionally, parties will rely on the GAL to serve as an impartial mediator for custodial and visitation issues, or even as a form of custodial evaluator.

SETTLEMENT OR TRIAL

Once each side is fairly comfortable that they have enough information, obtained through Discovery, the parties should try to resolve their case, preferably by agreement. Many divorces are resolved through discussions between the parties. In these circumstances, the parties will typically present an agreement in written form to the court for approval without a hearing. If an agreement cannot be reached between the parties, the parties may elect, or the judge may order, to have the parties meet with a mediator to attempt to resolve the disputes. A mediator is an impartial attorney who typically has great familiarity with divorce related issues and can assist the parties in reaching a settlement.

If there are issues that cannot be settled, either party can request that the court set the case for Trial. At the trial, the court will hear all the proper evidence presented to it and will make a ruling. There are no jury trials in divorce cases. The ruling will be put into a written order.

If your questions are not answered by reading the materials on this site, you may be in need of a professional consultation with divorce and family law attorney. Feel free to contact us to set up an appointment.