Same-sex couples in Indiana face unique legal and practical challenges when navigating divorce and child custody. While Indiana law recognizes same-sex marriages and provides equal protection in divorce, issues such as property acquired before marriage, establishing parental rights, and the dissolution of civil unions or domestic partnerships can complicate the process. This guide explores the key aspects of same-sex divorce and custody in Indiana, offering practical checklists, detailed subtopics, and answers to frequently asked questions to help you protect your rights and your family.
Legal Background: Same-Sex Marriage and Divorce in Indiana
Since 2015, Indiana law has recognized same-sex marriages and divorces, granting LGBTQ couples the same legal rights as opposite-sex couples. This includes protections for property division, spousal maintenance, and child custody. However, unique challenges often arise, such as dividing assets acquired before marriage equality and establishing parental rights for non-biological parents.
The Divorce Process for Same-Sex Couples
The steps for same-sex divorce in Indiana mirror those for any couple:
- Filing for divorce (at least one spouse must have lived in Indiana for six months)
- Serving notice to the other spouse
- Negotiating settlement agreements on property, custody, and support
- Finalizing the divorce decree in court
However, couples may face additional questions regarding the legal start date of the marriage, especially if they cohabited or had a civil union before marriage was legally recognized.
Property Division: Special Considerations
Indiana follows equitable distribution, meaning marital property is divided fairly, not necessarily equally. For same-sex couples, issues often arise with:
- Assets acquired before legal marriage: Property obtained during cohabitation but before marriage may not be considered marital property unless there is a cohabitation agreement.
- Civil unions/domestic partnerships: These may require separate dissolution proceedings if formed in other states.
- Documentation: It’s important to provide clear records of when assets were acquired and under what circumstances.
Spousal Maintenance (Alimony) in Same-Sex Divorce
Indiana recognizes three types of spousal maintenance:
- Temporary maintenance: Support during divorce proceedings.
- Rehabilitative maintenance: Support for up to three years to help a spouse gain education or training for self-sufficiency.
- Incapacity maintenance: Long-term or permanent support for spouses unable to support themselves due to physical or mental incapacity.
Courts consider factors such as the length of the marriage, standard of living, earning capacity, and each spouse’s financial resources. There is no set formula; judges have discretion based on the facts of each case. Same-sex couples should be prepared to present evidence of financial need and the circumstances of their relationship.
Child Custody and Parental Rights in Same-Sex Divorce
Indiana courts decide custody based on the best interests of the child, considering factors such as:
- Emotional bonds between the child and each parent
- Stability and suitability of each home environment
- Each parent’s ability to provide for the child’s needs
- The wishes of the child (especially if age 14 or older)
- Any history of domestic violence
Legal parentage is crucial:
- If both spouses are legal parents (by birth or adoption), they have equal rights.
- Non-biological parents who have not adopted may need to present evidence of their parental role or pursue a second-parent adoption to secure rights.
Child Support Considerations
Child support in Indiana is calculated using the Indiana Child Support Guidelines, which consider both parents’ incomes, the number of children, and the cost of health insurance and childcare. Non-biological parents may be responsible for support if they are recognized as legal parents. Courts may also consider voluntary agreements between parties.
Domestic Violence and Civil Remedies
Domestic violence or abuse can significantly impact divorce and custody. Indiana law allows victims to seek protective orders and pursue civil remedies, known as “domestic torts,” for compensation and justice. These remedies can include claims for assault, emotional distress, and financial exploitation.
Victims should be aware of:
- The statute of limitations for filing claims (generally two years for personal injury)
- The potential emotional and financial toll of litigation
- The importance of privacy and the public nature of court proceedings
Name Changes After Divorce
A spouse may request to revert to a prior surname during the divorce process. This must be included in the petition or requested at the final hearing. After the decree, individuals must update their name with the Social Security Administration, Indiana BMV, banks, employers, and other institutions.
Practical Guides and Checklists
Preparing for a Same-Sex Divorce in Indiana
- Gather all financial documents: bank statements, property deeds, retirement accounts, tax returns
- Document all assets and debts, including those acquired before marriage
- Collect evidence of parental involvement (photos, school records, communication logs)
- List all legal agreements (prenuptial, postnuptial, cohabitation, adoption papers)
- Prepare a proposed parenting plan if children are involved
- Consult with an attorney experienced in same-sex divorce and custody
Checklist for Asserting Parental Rights as a Non-Biological Parent
- Adoption decree or legal documentation of parentage
- Evidence of active parenting (attendance at medical appointments, school events)
- Written agreements or statements from the biological parent
- Testimony from teachers, doctors, or others familiar with your role
- Documentation of financial support for the child
Child Custody Checklist
- Child’s birth certificate and adoption records
- Marriage certificate and divorce petition
- Financial documents (pay stubs, tax returns, child-related expenses)
- Evidence of involvement in the child’s life (photos, emails, texts)
- Parenting plan proposal (decision-making, physical custody, visitation schedule)
- Records of any domestic violence or abuse (police reports, restraining orders)
Frequently Asked Questions
- How does Indiana treat same-sex divorce compared to opposite-sex divorce?
Indiana law treats same-sex and opposite-sex divorces the same in terms of process and legal standards. However, unique factual situations (such as assets acquired before marriage equality or establishing non-biological parental rights) may require special legal attention. - What if only one spouse is the legal parent?
If only one spouse is recognized as the legal parent (by birth or adoption), that parent generally has stronger custody rights. Non-biological parents may need to establish their role through adoption or by presenting evidence of their parental involvement. - Can a non-biological parent get custody or visitation without adoption?
It is possible, but the non-biological parent must provide compelling evidence of their parental role and the child’s best interests. Courts may consider the length and depth of the relationship, the child’s wishes, and the support provided by the non-biological parent. - How is property divided if we lived together before marriage?
Indiana generally divides only property acquired during the legal marriage. Assets acquired during cohabitation are not automatically considered marital property unless a cohabitation agreement exists or both parties’ names are on the title. - What happens to civil unions or domestic partnerships from other states?
These may require separate dissolution proceedings, depending on the jurisdiction where the union was formed. Discuss your situation with an attorney to ensure all legal relationships are properly dissolved. - How do I change my name after a same-sex divorce?
Request the name change during the divorce process, and ensure it is included in the final decree. Afterward, update your name with the Social Security Administration, Indiana BMV, banks, and other institutions. - What legal remedies are available for domestic violence in same-sex relationships?
Victims can seek protective orders and file civil claims (domestic torts) for damages. It is essential to consult with an attorney to understand your options and the process for seeking relief. - What if my child was born before our marriage?
Establishing legal parentage may require additional steps, such as second-parent adoption or court orders recognizing your role as a parent. Consult with an attorney to protect your parental rights.
Same-sex divorce and custody cases in Indiana require careful attention to legal nuances and thorough preparation. By understanding your rights, gathering the necessary documentation, and working with experienced legal counsel, you can navigate these challenges and protect your family’s future. For personalized guidance, contact the family law attorneys at Ciyou & Associates, P.C.
Digital assets are often overlooked but can be highly valuable. Legal guidance is essential to ensure a fair and transparent division.
This blog was written by attorneys at Ciyou & Associates, P.C., and this blog is not intended to provide specific legal advice or solicitation of services as this is an advertisement.
