The Family Code governs the rights of spouses who decide to divorce. According to the law, both spouses have the same duties and powers regarding the maintenance and upbringing of children under the age of majority.
It is believed that after the divorce, the parent to whom the child has more physical and spiritual attachment has more rights for children. There is also another, equally common opinion that children should stay with the parents who have the best material resources.
Both of these stereotypes are not true. According to the law, both mom and dad have equal rights and duties concerning their children. None of the parents can have any advantages over each other. To determine the future place of residence of the offspring, the court conducts a comprehensive study of the circumstances of the case, taking into account various individual factors, and only then decides who will stay with the child after the divorce.
Going to court
Quite often, spouses who decide to leave have deep interpersonal problems between themselves and therefore cannot think soberly and rationally. Trying in all possible ways to infringe upon the dignity and interests of each other, they begin to hide behind the interests of the children. Unfortunately, such spouses forget that the dissolution of marriage brings them the most suffering to their daughter or son. The court, while deciding who the child will remain with, is primarily guided by their interests.
How to apply?
The statement of claim for divorce must contain a description of all the circumstances of family life and a list of all convincing arguments about who children should live with after the parents’ divorce. The available evidence should support the above cases. Both parents make arguments in court that testify to their ability to provide children with the best conditions for living and development – material, spiritual, physical.
The basis of the judicial system for the division of children is the Law on the Protection of the Rights of the Child. Before making a decision, the court must get the opinion of all participants in the process and examine in detail all the circumstances relating to the family.
Particular attention is paid to the following: The opinion of a son or daughter is taken into account if he has reached the age of 10 years. The child is asked questions: where and with whom from his parents does he want to live, with whom does he have a better relationship, and to which of them does he feel great affection.
Communicating with kids under ten years old in court will not happen because by default it is believed that they will feel better next to their mother. This belief is based on the principle outlined in the Declaration on the Rights of the Child – babies should not be separated from their mother unless individual cases occur.
If it turns out that the father has a secure attachment to the child, insists that the child lives with him, is ready to take care of his upbringing and development, then the daughter or son may be left with the father. It should be noted here that most of the fathers, wishing to take away the heir from the former spouse, are guided solely by revenge, resentment, and demonstration of their ambitions. If the former husband did not go for walks with a small child, did not engage in treatment, reading fairy tales, that is, did not pay attention to him, did not participate in his development and upbringing, then the court takes the side of the mother.
Among other things, the court takes into account such circumstances as the financial situation of each of the parents, their living conditions, social environment, and others.
Recently, a new article has appeared in Indiana legislation, according to which parents can retain their rights to children.
In this case, each parent allocates a room in his apartment and adapts it to the child. In this case, both the father and the mother should carry out the full maintenance of the child. In this form of separation of children, it should be borne in mind that joint custody of a child is possible only if he is six years old. Children under six years of age usually stay with their mother and live on her territory.
The effect of divorce on the child’s psyche
Spouses who have decided to divorce must remember, the divorce will affect not only the future of their offspring but also on his mental state. So, if the parents live together just for the sake of the child, retaining the appearance of family life, then in such a situation it is better for the couple to part and lives separately.
A divorced spouse must understand that children need to communicate with both mom and dad. For the child to develop mentally normally, the spouses should remember a few simple rules: Do not transfer your hatred and a bad attitude to the former half to your child, calmly react to the new family of the former spouse or wife.
If you are left with a child, or even with two children, there is no need to dwell on the fact that now you can never arrange your personal life. Communicate more with friends, visit interesting places with your son or daughter and be happy. Remember that your child will never feel satisfied, knowing that you feel bad. Living after a divorce with children is many times better than a divorce and being left without them.
Quite recently there was a family, standard home and life. However, for some reason, everything changed, discomfort arose in the relationship, and a mutual understanding was lost. In each family, there are many problems. Unfortunately, most of them are pushing the spouses to an important step, namely divorce. Just yesterday, a happy husband and wife were two halves of one whole, but today they are experiencing stress and mental agony. In addition to psychological problems, people face other issues.
To get a divorce in Indiana, you need to overcome some difficulties: prepare documents, go through instances and survive all the unpleasant moments that the divorce process entails. In order not to get confused, the spouses should know the legislation that regulates the divorce, as well as has a common understanding.
How to Submit Documents to Start the Divorce Process?
To apply for divorce, you must live in the state for six months and be a resident of the district in which you use for three months. By agreement, the parties may apply to the community in which they do not live.
Call in advance to the district where you or your spouse live and find out what documents are required of you in order not to waste time. Provide at least three sets of documents needed. There should be one package of materials for you, the second for the employee and the third for serving the second side.
According to state law, all documents that contain confidential information must be printed on paper of light green color. By confidential information, it is meant bank account numbers, insurance numbers, and any similar information.
How to File for Divorce
You must provide the second party with a copy of the divorce documents. According to the law, you are allowed to settle the other side employing a certified mail, and you can use a private process server or use the sheriff’s services.
Regarding the use of certified mail to notify the spouse, this option is suitable if you are fully confident that the second party will cooperate with you and accept the documents. Remember that you will need to provide proof for the court that you notified your spouse.
If you can resolve all issues by agreement, it is necessary to conclude an amicable settlement. When you cannot reach a consensus, then disputes must be addressed in court. Remember that the minimum period of the divorce process will be 60 days.
Information That Is Often Misleading
The divorce process is somewhat complicated. Since the legislation in each state is different, there are quite a few misleading myths. Here you will find real information that is not a myth.
In some states, the payment of alimony, that is, financial support to the former spouse after the divorce process still exists. Although this scheme is becoming less popular in recent years.
However, in Indiana, there is no such thing as alimony, but there is a so-called “spousal maintenance,” which can only be obtained if the following conditions exist:
one of the spouses is incapable, as a result of which he cannot financially provide for himself.
Spouse for a long time did not work (in connection with the upbringing of children), and she\he needs time for employment.
2. Under state law, you can file for divorce without any particular reason. However, the legislation provides for the following reasons for divorce:
the irreversible breakup of the marriage;
a spouse is impotent;
one spouse has an indistinguishable mental illness;
One of the spouses was convicted of a serious crime.
3. As practice shows, usually, such a reason as irreversible divorce proceedings without providing any details is indicated. The court does not need features only if it does not threaten potential harm to children or criminal activity is involved.
4. The divorce process may begin even if one of the spouses does not agree to this. However, this can significantly complicate the whole process. The court can make a decision even without the permission of the second party.
5. There is a mandatory cooling period which is 60 days. On the 61st day, there is an opportunity to file a settlement (only if both parties agree to this) and refuse to continue the divorce process.
6. Many believe that the party that first files for divorce have several advantages. It gives absolutely no gain to the party before the court. The only power is that it is possible to choose a court or judge. However, the defendant can submit a request to change this.
What About the Joint Property?
In this state, all debts and family debts are combined and then distributed according to the decision of both parties. The parties may agree on the distribution, in the case where there is no consistency, the court may award a uniform distribution.
It should be noted that after filing a petition for divorce, all acquired property is not considered by the court as general and is not subject to division.
It is worth noting that the division of assets on the principle of equal distribution does not always apply. There are circumstances in which spouses do not consider such a disposition to be fair.
For example, in the case when:
Remember that if a lot of disputes accompanies your divorce process, then the lawyer’s fees will be high. Before you meet with your lawyer, be sure to prepare all the questions in advance that you need to know. This will help you save money, and also remember that your every call for trifles will also then be counted in the check for legal fees.
People regularly face family issues and, unfortunately, not everyone can find a way out of a conflict situation, which can eventually lead to divorce. In such a condition, the main thing is a competent approach. You need to know how the process of divorce happens to make it quick and stress-free. It is necessary to adhere to the algorithm of actions and specific requirements and rules established by law.
Before the dissolution of marriage in court, it is advisable to ponder and resolve the issues below:
• Division of property and debt acquired in marriage. In practice, this can be quite a difficult task, especially if a significant amount of capital has been learned in marriage. If the spouses have debt obligations, then both parties must also decide how they will be paid. For example, it is possible to sell part of the property acquired in marriage to pay off debts, or one of the parties may take all or most of the debt obligations in exchange for a larger share of the property.
• Payment of alimony (financial assistance) to the second party. If one party will pay the maintenance, it is necessary to agree on its amount and duration.
In some cases, the law establishes a specified period during which alimony payments are made. Spouses may enter into a written agreement on the amount of alimony, which must be certified by a notary before filing for divorce in court.
• Place of residence of children, the order of their visit and the amount of financial support for the child. If there are minor children in the marriage, the participation of each of the parents in raising and ensuring the living conditions of the children should be determined. Questions about the place of residence of children, the order and duration of their visit by the second party and the amount of child support are usually the most difficult and emotional during a divorce, especially if one side tries to use children to take revenge on the other.
Although the amount of child support also has an intense emotional coloring, there are several options for such payments (the share of earnings and a well-established amount of fees). The agreement between the spouses on the amount of child support cannot violate the interests of the children and must be notarized.
When resolving issues related to the divorce proceedings, it is necessary to be guided by the code of laws regulating the marriage and property relations between spouses. An inexperienced person may find it difficult to understand the nuances of applying certain provisions of laws and specific articles, so it is advisable to consult with an attorney in family matters.
Discussing the conditions of the divorce process and making a decision, follow the rule that your choice should be fair for both parties and (ideally) coincide with the conclusion of the judge if the disputed issues are considered in court.
Divorce proceedings are decided in the following cases provided by law:
• There are minor children in the family, so the court must ensure that their interests are respected. When the spouses file a joint application for the dissolution of marriage in court, they may file a written contract in which they must state: the place of residence of the children, as well as participation in the upbringing and maintenance of the living conditions of the children of each parent. The agreement on the amount of child support for children must be notarized. At the end of the statutory period (usually about a month), the court considers the application of the spouses and, if it is established that it genuinely reflects the intentions of the parties, does not violate their personal and property rights, as well as the rights of their children, the court issues a divorce decree. Before the expiration of this period, the spouses may withdraw their application.
• One spouse does not want to dissolve the marriage. The court may take measures to reconcile the spouses. As a rule, it sets a certain period (from one to six months) during which the spouses can change their decision to dissolve the marriage in court.
In some cases, this period may be reduced. At the end of this period, the court considers the application for divorce on the merits.
• One of the spouses does not object to the divorce proceedings but refuses to file a joint claim to the court.
Overall, it may be that the result of the divorce will not satisfy any of the parties. Studies show that when divorcing in court, the division of property and financial obligations of spouses are the most common issues. To achieve the goals set in court, it is advisable to choose the right strategy to protect one’s interests together with a family lawyer in advance.
Tips on What to NOT do when Divorcing
1. Do not Make Children to Take Sides
Naturally, the last thing parents want for their children in the process of divorce is to cause them pain and suffering. Unfortunately, in practice, the actions of parents during separation can bring a lot of mental torment to children.
Of course, the parents may be angry at this difficult time and want to punish each other, but using children as hostages of the situation can cause serious harm to their psyche. Do not force the child to take your side or to prove love for you by denying his/her feelings towards the second parent.
2. Do not Consider Your Attorney as Your Psychologist
Your lawyer may be an excellent specialist, sympathetic, a wonderful listener, but he or she is not a mental health professional. Therefore, every time, complaining about your ex, do not forget that you are paying for this time.
3. Avoid Unauthorized Costs
Some couples are ready to fight to the end to keep something. However, your lawyer is the one who wins in this case. When you are trying to get the unnecessary stuff for yourself, you pay him/her. Usually, you are not even fighting for things but the win.
4. Do not Refuse the Mediator
It can be understood that the very idea that you will sit at the negotiating table with your ex, trying to discuss the problems politely, is not pleasant. You may not be able to solve all the controversial issues in this way, but even deciding at least a few of them with the help of a mediator will save you time and money. You may be pleasantly surprised to find out that you and your ex will soon agree on specific terms.
5. Do not Demonize the other Parent in the Child’s Eyes
Do not allow yourself and your relatives to speak poorly of the second parent in the presence of children. Remember that the baggage of your relationship should not fall on them.
6. Do not Start New Relationships Right Away
Divorce can be intense, and it’s normal that you will want to experience the feelings of emotional connection, comfort, and abstraction that a new romantic relationship has to offer.
However, keep in mind that it may only make your divorce process more complicated and lengthy as you will have another person having an opinion on it, which may prevent you from making the right decision.
Paradoxically, but a fact – if two loving hearts want to legalize their relationship, agreement and presence are necessary, as evidence of the sincerity and immutability of this decision in the face of the state. The exception is a small percentage of fictitious unions or marriages contracted against the will. However, divorce without the consent of the spouse is more frequent in modern life. What can serve as a motive to file a divorce without the consent of the spouse?
First of all, it is all-consuming feelings of resentment, pain or jealousy, and when the other side becomes a source of negative experiences, it seems just necessary to divorce unilaterally.
There are cases when further marital relations between spouses for any reason become impossible.
An adequately registered marriage entails respective rights and obligations of spouses both in the area of acquiring property and raising children, and in many others, therefore, if we continue to live together again, it is advisable to terminate such a marriage to avoid further problems.
It would be reasonable to resort to the procedure of divorce.
Family law, as a general rule, allows for the dissolution of a marriage in two ways: in the registry offices or through the courts.
The exceptions are cases where the marriage is automatically terminated (the spouse commits a criminal offense, declaring him dead or absent, as well as other reasons).
It often happens that family life does not satisfy only one of the parties. As a result, this side becomes the initiator of the divorce process. The course of the divorce proceedings is determined by the presence or absence of the consent of the other spouse to divorce. If the second spouse agrees to the termination of the marriage, the divorce in the lack of other claims to each other (property disputes or disputes about children) takes place in the registry offices and takes only one month.
Divorce in court
The situation is significantly complicated when the second spouse is categorically against the divorce and does not give its consent to it. In this case, the only way out would be to apply to the court for divorce unilaterally, which is submitted by the party initiating the divorce. The legislation does not provide the commencement of the divorce process. It is possible to file for divorce anyway, and not necessarily only when the spouse performs specific actions or shows unworthy behavior.
The only limitation in this question, introduced by the Family Code, is for a man in a married couple – he cannot demand the termination of the marriage if his spouse is pregnant or the familiar child has not turned 12 months from the day of birth.
A woman, on the contrary, is allowed to act as an initiator of divorce in any case. Divorce proceedings in court are quite complicated and require positive attention because proper paperwork and compliance with other nuances will significantly save time during the operations.
To begin with, a spouse who wishes to formalize a formal divorce must be drafted and filed a claim with the court. In the cases of this category, the presence of any particular form of the statement of claim is not necessary. Therefore, the main thing will be the indication in the application of its claims, as well as other circumstances that may be relevant to the case.
Particular attention should be paid to the list of documents attached to the statement of claim.
Together with the statement of claim to the court must be sent:
• A receipt confirming the fact of payment of the state fee.
• Extract from the house management, stressing the place of residence of the second spouse.
• Marriage certificate.
The statement of claim must be sent to the Magistrates Court if there are no minor children from the marriage, as well as property claims. If there are any, the application is submitted to the district court. The Civil Procedure Code, defining the categories of cases that are subject to one or another court, governs this procedure.
When the claim is accepted for consideration, and the trial has already begun, the second spouse, who does not want a divorce, can significantly complicate the course of the case by failing to appear in court or by requesting a term for reconciliation. Indeed, the court has the right to offer the spouses up to 3 months for settlement. It is possible to avoid the deadline for reconciliation if the statement of claim states the circumstances were referring to the impossibility of agreement of the spouses.
Such conditions can be misbehavior of the spouse, abuse of alcohol, gambling, etc. These facts can be proved by both documentary evidence and using the testimony of witnesses.
The defendant’s failure to appear in court also significantly lengthens the process due to the postponements of the court session. However, if the defendant is duly notified, knows about the trial and claims of the claimant, but does not come to the court at the 3rd hearing, the claimant’s complaints will be satisfied and the marriage terminated. Thus, the law does not prohibit a divorce through the court without the consent of the other spouse, but for its production and execution, it is necessary to comply with specific procedures and conditions.
Divorce without the husband’s consent
If we talk about divorce without the husband’s permission, the spouse can divorce him when she considers it necessary and without undue restrictions on the part of the law, both during pregnancy and immediately after childbirth. However, if there is a minor child – the court has the right to set a term for a reconciliation of the parties up to 3 months. At the same time, it is necessary to present evidence with whom the child lives and with which of the parents he will remain after the divorce.
This situation allows us to make a hasty conclusion that it is not difficult to make a divorce without children unilaterally. But it is not. Professionals can help you to do everything on the internet. They will save your time, money, and nerves. Therefore do not hesitate to contact professional advocates if you need them.
Based on recent judicial practice, it should be noted that obtaining a divorce without the consent of the spouse unilaterally now requires submission to the court of evidence that the second party refuses to dissolve the marriage office in the civil registry offices voluntarily. Otherwise, the filed claim will be left without movement by the court ruling, even if at first glance it was made correctly and in compliance with all requirements. Also, an unresolved dispute regarding the division of common property acquired during a marriage can be a complicating factor.
Where to hold a divorce without the consent of the spouse?
Divorce without the consent of the wife/husband is carried out in the civil registry offices regardless of the presence of minor children if the spouse was declared incapable by the court or missing. In other cases, the divorce without the consent of the spouse can only be obtained in court, while submitting the necessary documents.
With a divorce in Indiana spouses face a variety of issues. And the division of property is one of them. Many couples are wondering how their property will be distributed? And this is a completely logical question, because the separation of property in Indiana has its own characteristics and nuances. There are couples who can agree among themselves and based on this, their property division will be easy and painless. But there are also spouses who cannot find a compromise so in their case property will be separated in accordance with the law and on the basis of a judge’s decision.
Indiana property division law
Typically Indiana courts in divorce are guided by the fact what will be fair for both spouses in the distribution of property. This does not mean that the division will be equal. In other words, if the court does not consider that the distribution of property in the 50/50 proportion is fair, it will not decide in favor of equality.
However, this does not mean that spouses cannot divide their property in half. In Indiana there is a rebuttable presumption of equal distribution, which is that the court will divide the common property in half, if spouses do not have refutations. If one of the spouses believes that the 50/50 proportion is not honest, he or she is obliged to provide the court with indisputable evidence of his conclusion, after which the court will divide the property in a proportion that will be fair.
According to the law in Indiana, the duration of the marriage is not the determining factor in the separation of property. However, in those marriages that did not last long the court would not follow the presumption of equality in order to give the spouses the opportunity to preserve what they entered into marriage with.
Marital Property vs Separate Property
Based on Indiana law common or marital and separate property are different concepts. The common property is all that the spouses acquired from the moment of marriage, while the separate one is the property that each spouse owned before marriage, or all that the spouse inherited or received as a gift while being married. Usually only common property participates in the division of property, although the court can even divide separate property, if he considers that it is fair.
Another type of property in Indiana is a mixed one, it is a situation in which a separate property can become common. For example, a bank account owned by one of the spouses before marriage is considered separate. But if the second spouse during the marriage made contributions to this account, then it will be considered marital. Mixed property is quite difficult to divide, so this issue is considered by the courts very carefully. A big advantage would be if the spouses have a marriage contract or a settlement agreement and know how to share their assets and liabilities bypassing the courtroom.
Factors in property distribution
In order to understand how to divide property a court must analyze various factors of a marriage. Based on this analysis, it will be decided: to divide the property in half or fairly. The following factors are key to the court:
Grounds for divorce are never taken into account in the process of property separation. However, if one of the spouses provides incontrovertible evidence that his or her partner spent money on gambling or other dubious activities during the marriage, this will definitely play against equal division of property.
The distribution of marital property always depends on the peculiarities of the marriage. Different situations can affect whether a property will be divided equally or in any other proportion. In addition, the spouses themselves can decide how to make the separation. Very often couples prefer to simply sell most of the property and divide the proceeds according to state law or at their own discretion.