Stages of a Divorce
Divorce is a stressful time---whether it is a decision you have made and have made peace with, a decision that your spouse has made that is still causing you great pain, or anything in between. In all the clients we've worked with, none of them have taken it lightly.
Understanding how divorce works can help lessen the stress. Indiana is a 'no-fault' state which means that a divorce is granted for the simple reason of irreconcilable breakdown of the marriage with no need to explain to the Judge the reasons for the divorce. Either spouse can ask for and receive a divorce, with no requirement that the other spouse need consent.
Every divorce is different, but all go through the same four stages:
- Initial Filing
- Gathering and Sharing Information
STAGE 1 - INITIAL FILING
Either spouse can file for the divorce. There is no tactical advantage to being the first to file--the only practical difference is that the one who files has to pay the filing fee (currently from $136 to $161 depending on the county).
The initial documents to file include the Petition, where you ask ('petition') the court to dissolve your marriage; the Appearance, where you tell the court who your attorney is; and the Summons, which is a form document formally summoning your spouse to court.
This stage is relatively straightforward procedurally, with relatively few decisions to make. You need to decide if you wish to change your name and it's a good idea to discuss with your attorney whether you wish to request a Provisional Hearing, if you need to request a Temporary Restraining Order, or if there are any emergency issues.
STAGE 2 - GATHERING AND SHARING INFORMATION
The days of Perry Mason are over. By that, we mean that it's no longer acceptable to have 'gotcha' moments at final hearing when one side surprises the other. Indiana Law is very clear (and very serious) about requiring both spouses to disclose information to the other. Each spouse has the responsibility to gather his or her own information--if you don't happen to have a recent bank statement for an account in your name, therefore, you will be responsible for contacting the bank and getting one. There are three main ways that information can be shared.
- Informal Sharing. In Collaborative cases each side can produce the documentation of assets, debts, and any other requested information and share with the other. No court involvement is necessary and overall costs are much lower. This method is enforced in Collaborative cases by the signatures on the Joint Participation Agreement that binds each side to honest and forthright disclosure. If yours is a case where you do have great familiarity with the marital finances, or have suspicions of potentially hidden assets, this method will be insufficient. No one enjoys sitting down to gather complete financial documentation, but it is an essential exercise. Your attorney cannot advise you whether a settlement is a fair deal for you without complete information and no Court will be able to rule without complete information.
- Financial Declaration. Monroe County and many other counties have either a mandatory or an opt-in form that requires full disclosure of financial information, attachment of supporting documents, and signature under penalty of perjury. Again, it is certainly not a fun time to sit down and complete a Financial Declaration, but it is essential. If one account is accidentally forgotten, it can throw off the entire negotations and even leave you open to allegations of fraud or deceptive behavior and cause you to lose serious credibility with a Court.
- Discovery. If more detailed information is required that can be included (or than happens to be included) in a Financial Declaration, then your attorney will discuss with you whether discovery may be necessary. 'Discovery' refers to the set of tools that you can use to 'discover' information about the other side's case. For example, you can use Interrogatories (lists of questions), Requests for Production of Documents (just what it sounds like), Requests for Admission, Requests for Physical or Mental Examination, or Depositions to gather information.
STAGE 3 - RESOLUTION
Divorces can be finalized in many ways. In Collaborative cases, final resolution comes when all parties and attorneys sign a 'Marital Settlement Agreement' and submit it to the Judge for signature. Once the Judge signs it, the divorce is final.
In many cases, informal negotiation will be enough. We have many cases where the spouses themselves do much of the negotiation and the attorneys step in to review and draft the final language. Informal negotiation usually consists of back and forth communication between the attorneys with proposals and counter-proposals, often in letter form until the parties get close to agreement.
For those cases that get stuck--whether on just one seemingly impossible-to-resolve issue or on many issues, mediation is a great option. At the end of a successful mediation (and most of them are), the parties nd attorneys sign a 'Mediated Settlement Agreement' and submit it to the Judge for signature. Once the Judge signs it, the divorce is final.
Finally, if no other means works, going to Court will certainly allow you to reach a resolution. While we would never describe court as fun, or something to schedule instead of that long-awaited trip to Disney World, we have good people as judges in our area. They treat people with dignity in the courtroom, don't allow abuse by the other side or the other attorney (although questioning can get pretty pointed), and genuinely care about making the best decision they can. That said, we almost always try other methods of resolving cases before going to court. When you negotiate or mediate, you and your spouse are the ones making the decisions about your children, belongings, and finances. When you go to court, it is entirely in the Judge's hands. At the end of the hearing, the Judge often shares some instructions with the parties about lessening conflict if there are children involved. The Judge almost always takes the case 'under advisement' which means that she or he will return to chambers and think about the evidence prior to issuing a decision. Most area judges issue decisions in family law matters within anywhere from a week to a month, but there are rare cases where a decision can take months or even a year (those are very rare). Once the Judge signs the Decree, the divorce is final.
STAGE 4 - WRAP-UP
After a divorce is finalized, there are almost always some minor tasks to complete. Many of these are tasks that clients can complete themselves, such as getting cars titled to the correct person. Some are tasks that usually need an attorney's involvement, such as completing a QDRO (Qualified Domestic Relations Order) that divides retirement assets between the former spouses.
In rare cases, one side may be so unhappy with a court's order that she or he may wish to appeal. There are two main options for getting a second chance to correct a Decree. The easier option is a Motion to Correct Errors, which must be filed within thirty (30) days of the Decree. It returns the Decree to the trial court (the judge who heard the divorce) and asks the judge to correct certain errors. If the Decree has a math error, or accidentally neglected to address an important topic, this can be a good route. If, however, you simply disagree with the Judge's decision, it is unlikely that a Motion to Correct Errors will convince the Judge to reconsider. If, however, you wish to discuss appeal options with your attorney, please do so immediately. You have only thirty (30) days from a Decree to appeal a case (a Motion to Correct Errors can extend that period somewhat). An appeal is not a chance to re-litigate the case and the Appellate Court can almost never hear any new evidence. The Indiana Court of Appeals generally appoints a three judge panel to review written argument from each side and then makes a written decision. Appeals take many months (at best), are very expensive, and are very difficult to win as trial judges are given so much discretion.
Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this article is intended to substitute for legal representation.