Unfortunately, unless you have been a juror in a criminal or civil case, your expectation of how “real” divorce court is probably widely inaccurate. In Indiana, there is no jury trial for divorce cases. If there were, no panel of jurors would ever be seated as the men would want male jurors and the women would want female jurors. Furthermore, there are rarely opening and closing arguments. Finally, judges rarely rule on a divorce case from the bench. They may take several weeks to rule because divorce cases have many issues for courts to decide. This blog covers how “real” divorce court is in reality.
Perhaps the most surprising part of the overall divorce court proceedings to most litigants is that there are not fiery objections and screaming attorneys. The process is fairly calm overall (not that every seasoned divorce attorney has not had a case where a sheriff had to stand in at the court’s request because the parties could not control their tempers). Additionally, witnesses often testify from the table with their counsel next to them. What is real about divorce court like television court is the parties are expected to be respectful and dress appropriately (at least business professional).
While divorce and divorce court have very little overlap and a very different, except perhaps the movie with Danny DeVito the “War of the Roses”, it is REAL or more real that television court in that what the trial court judge decides will impact your time with the children and divide up your assets. Thus, the divorce is very real in that your life will never be the same again. When all is said and done, you will see your children less frequently, likely live in a different house, and probably have a lower standard of living.
For this reason, you need to fully understand the divorce process as well as you can so you can help your attorney make the best case he or she can for you. But before we get to the law, realize how you act in court will be picked up on by the judge—writing furiously, rolling your eyes at your spouse’s testimony or blurt out “s/he is lying” is very likely to result in a less favorable outcome than if acted your Sunday best.
Turning to the law related to a typical divorce, if there are children involved, it is important to understand physical and legal custody. Custody and parenting time rights are governed by Indiana Code § 31-17. Under the code, custody orders are determined based on the best interests of the child. When making an initial custody determination, there is no presumption in favor of either parent, and the court considers all relevant factors, including, but not limited to: (1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent.
A parent who is not granted physical custody of the child is entitled to reasonable parenting time unless the court finds that this would endanger the physical health of, or significantly impair, the child’s emotional development. The courts prefer, and expect, parents to work out their own parenting time plan. However, recognizing that this can sometimes be difficult, the Indiana Supreme Court has created the Indiana Parenting Time Guidelines to provide a model that parents can use as a starting point when creating their parenting time plan. Absent an agreement between the parties, the court will generally order parenting time based strictly on the Guidelines.
As it relates to legal custody, joint legal custody may be awarded if the court finds it to be in the child’s best interests. Of primary importance when determining if joint legal custody should be awarded, is if the parties have agreed to joint legal custody. The court will also consider: (1) the fitness and suitability of each of the persons awarded joint custody; (2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare; (3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age; (4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; (5) whether the persons awarded joint custody: (A) live in close proximity to each other; and (B) plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
Once a physical custody decision has been made by the court, the court will set the amount of child support the non-custodial parent must pay to the custodial parent in accordance with Indiana Code § 31-16-6. Factors considered when making a child support determination include: (1) the financial resources of the custodial parent; (2) the standard of living the child would have enjoyed if: (A) the marriage had not been dissolved; (B) the separation had not been ordered; or (C) in the case of a paternity action, the parents had been married and remained married to each other; (3) the physical or mental condition of the child and the child's educational needs; and (4) the financial resources and needs of the noncustodial parent.
With regard to property division, the question often arises as to what is marital property. The Divorce Act defines marital property: In an action for dissolution of marriage . . . the court shall divide the property of the parties, whether: (1) owned by either spouse before marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before the final separation of the parties; or (3) acquired by their joint efforts. (b) The court shall divide the property in a just and reasonable manner . . . .” Unless rebutted, “ . . .[t]he court shall presume that an equal division of the marital property between the parties is just and reasonable.”
Thus, divorce court is very “real” in that it will significantly impact your future. This blog was written by attorneys at Ciyou & Associates, P.C. who handle domestic cases across Indiana. This blog is not intended to be relied upon for any legal matter or issue. Furthermore, it is not legal advice. This blog is provided as general educational material. It is an advertisement.