Legal terminology can be confusing, particularly for those who have little-to-no experience with the court system. For example, everyone knows what a divorce is, but in Indiana a divorce is referred to as a dissolution of marriage, a phrase with which most people are not familiar. This blog explains the difference between filing and suing for divorce.
Any time a person initiates a lawsuit, they are technically suing the other party. ‘Filing for divorce’ and ‘suing for divorce’ then mean the same thing and the phrases can be used interchangeably. Stated differently, your filing for divorce is a suit against the other party.
However, most people, including those who work in the legal profession, will call it filing, instead of suing, for divorce. This may be because “suing” sounds more threatening and adversarial, which is not quite appropriate for a divorce. Many divorces are amicable, and the parties reach an agreement without ever going to court. These divorces are referred to as uncontested divorces, as the parties are able to work out all the issues without court intervention.
The remaining divorces involve disagreements and arguments over some or all issues and are termed contested divorces. In a contested divorce, the parties must go to trial and allow a judge to decide any issues upon which they cannot agree (if they do not resolve their case in mediation); a major risk for some. The judge’s decision may not resolve your conflicts in a manner that you or your spouse would choose, and you might both walk out of the courtroom very unhappy. Contested divorces can also be far more expensive, drag on much longer, and be more time consuming than uncontested divorces.
That being said, there are times when it is impossible to reach an agreement on all (or sometimes any) issues. When this occurs, mediation may be able to help the parties prioritize the issues, find new solutions, and come to an agreement on at least some contested matters. A mediator is a neutral third party who is trained to facilitate negotiations by reducing misunderstandings and points of contention so that the parties can reach an agreement that is satisfactory to them both. If you cannot come to an agreement on all, or most, of the issues on your own or with a mediator, you might have what is called a “high conflict” case.
High conflict cases usually occur when there are minor children and the parties disagree on various custody, parenting time, and/or child support issues. These cases involve numerous court filings, several hearings, and can drag on for months or even years. High conflict custody cases are oftentimes a result of the parties’ inability to communicate effectively about issues affecting the children and to then reach a compromise that is in the children’s best interests.
The Indiana Parenting Time Guidelines define high conflict parties “High conflict parties are parties who have had ongoing disagreements and conflict. The disagreements and conflict center on the parties' inability to communicate and resolve issues regarding the care of the child, a parenting time schedule, or any other issues that have adversely affected the child.” Many high conflict custody cases also require the appointment of a Guardian Ad Litem, a custody evaluation, and/or mental and physical health examinations of the parties.
Whether a divorce will be uncontested, contested, or high conflict, one party must file the petition for dissolution and then serve the other party with a copy of the petition as well as a summons. Service of the petition and summons on the other party is how the court acquires jurisdiction over that party so that it may hear the case. The only exception to the requirement of service is if the non-filing party signs a waiver of service for filing with the petition, or the parties file a joint petition with both of their signatures.
The summons is a standard form, used in all lawsuits, and usually says, “you have been sued by the party named as Plaintiff/Petitioner above.” When reading that sentence, a party may view the filing as adversarial, but it does not have to be. While you technically have been sued, all that has really happened is a petition for divorce has been filed by your spouse.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.