In past blogs we have looked at particular issues like custody and visitation, we have also answered FAQ‘s. Today we take a look at the nuts and bolts. What are the procedures? How does the process work? Why does a divorce take so long?
The first step in the process that gets the ball rolling is filing. This seems like an easy step, and on its face it is. However, there is quite a bit of paperwork and formalities involved. The filing spouse (known as the Petitioner) files a Petition for Dissolution of Marriage. This document must be signed (verified) by the Petitioner. It is a straightforward document that basically states when the parties where married, whether there are children, that the marriage is irretrievably broken (Indiana is no fault state so we don’t get into the why it’s broken), that one party meets the jurisdictional requirements (6 months in state, 90 days in county) and whether or not they wish to have a provisional hearing.
Included with this paperwork is a Summons which requires the other spouse (Respondent) to respond to the action and potentially an Order to Appear if the Petitioner is seeking a Court hearing. All of these papers are taken to the Clerk of Court and filed with the clerk along with Court costs (vary by county but in the neighborhood of $150). The Clerk then causes this paperwork to be filed on the Responding spouse via certified mail or by Sheriff. Most counties such as Marion County, Hamilton County, Boone County and several others have local rules that govern much of the filing process.
II. Provisional Hearing
What happens next depends on the situation the parties find themselves in. If the couple is communicating and has figured out how to deal with their living situation, kids, bills, and assets in the short term, then they may skip this step. For couples who are less agreeable or just can’t figure out what to do while the divorce is pending, the provisional hearing is where they go next. The purpose of a provisional hearing is who is responsible for what while the divorce is pending, where the parties will live and what to do with any children. Temporary possession of assets, the marital home, temporary maintenance(spousal support), child custody, visitation, and child support will be addressed. Additionally, how to handle any bank accounts and who pays what bills will be addressed. Many times prior to the Provisional Hearing, the parties enter into an agreement resolving these issues. Absent an agreement, the parties will present evidence and the Court will make the decision.
III. Discovery Phase
This next phase is what can cause a divorce to take a long time. This is the phase where the attorneys will work to get the whole picture of the marital assets and debts so that the parties know what there is to include in the marital pot for distribution. Additionally, discovery into income and what is in the best interest of the children in terms of custody and support will be investigated at this point. In general the more assets there are the longer and more complicated this process is. The more disagreement there is about the children the more complicated this process can be.
For example, if the marriage includes an owned business, there may need to be a professional that conducts a business valuation. Both sides can hire their own expert and disagreements over these findings can lead to further discovery. Another example is if there are pension plans or other retirement accounts to be divided. Valuing these accounts and determining a method by which to split them that everyone finds agreeable is many times a “sticking” point in a divorce.
As for the children, there can be professionals hired to evaluate the interests of the children as well. If there is a dispute over custody and/or visitation, this process can go on for months as each side acquires evidence to establish what they believe is in the best interest of the children.
Obviously, the longer the discovery phase is, the more contentious the parties are, the costlier the divorce process becomes. It is always important to keep in mind the practical side when it comes to fighting over an asset.
IV. Settlement Agreement or Final Hearing
The end is in sight! After discovery is done, in the vast amount of divorces the parties enter into a settlement agreement. In this process, the parties sign a Waiver of Final Hearing, the Settlement Agreement, and a proposed Divorce Decree. Once the Judge reviews the paperwork and signs off on the paperwork, the party is legally divorced.
For those parties that are unable to reach an agreement, they will proceed to a Final Hearing. (Many counties will require the parties to engage in mediation before a final hearing date is scheduled. Mediation is a process where a trained third party neutral meets with all the parties in an effort to work out a settlement). The Final Hearing is basically a bench trial. The parties may stipulate to some matters and submit others for the judge to decide or they may have the judge decide everything. This includes presenting evidence about custody of children, child support, values of property and assets and how each party thinks these issues should be decided by the judge. The judge will then take the matter under consideration and will issue an order some days or weeks later.
The process of a Final Hearing requires a substantial amount of work on behalf of the attorney and will result in significant attorney fees.
V. Post -Dissolution
Wait! You said the divorce was over. Well, yes it is, but that is not the end of things. Once the Order is entered by the Court, many times there is additional paperwork to be completed to effectuate the Order. That includes transferring assets, preparing and approving Qualified Domestic Relations Orders(for some retirement accounts), setting up the child support payments, signing off on titles and deeds, etc. etc. Once all of this is done the process is for all intensive purposes complete. For those couples who had children during the marriage, it will be important to know they will continue to have a legal relationship because of those children and may have issues that come up later, such as changes in child support, visitation, relocation, emancipation, etc.
The foregoing is a very basic outline of the process and path of a divorce. There are likely to be many bumps and curves along the way. The attorneys at Banks & Brower, LLC stand ready to assist you should you need to navigate through this process.