There are many times and reasons that people file for divorce. In some cases, it is with the hope that it causes the other spouse to take the marriage seriously—and save it. To begin a divorce case, a party must file a Verified Petition for Dissolution of Marriage. Pursuant to the Divorce Act. This blog explores whether you can withdraw a divorce once you file it.
A party may move to dismiss their divorce case at any time. In fact, if it sits long enough the court may move to dismiss it on its own motion. This noted, if the opposing party (the respondent) files a cross-divorce petition for dissolution of marriage, then the petitioning party cannot file for dismissal. The reason a spouse would file a cross petition inter alia would be to avoid being caught in a position where the petitioning party would move to dismiss. If there is a cross-petition filed, then both parties would have to agree to the divorce’s dismissal.
While it is hoped that a filing would result in a reconciliation, it may not. For this reason, this blog covers custody and property issues related to divorce… Where 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.”
If you are, or will be, involved in divorce case the experienced attorneys at Ciyou & Associates, P.C. have the knowledge and skills required to help you protect all your paternity related rights. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement. We hope this blog helps you understand withdrawing a divorce.