Divorce Litigation and Mediation
Divorce Litigation and Mediation
Every divorce in Indiana begins with the husband or wife filing a Verified Petition for Dissolution of Marriage. This allows the court to determine if it has jurisdiction over the case and other key factors, such as if the wife is pregnant, if there are proper grounds to provide the divorce court with jurisdiction, the residency in the State and county to ensure the case is filed in the correct venue, and notice that the marriage is “irretrievably broken” as required in the Divorce Act.
By filing a Verified Petition for Dissolution, you are filing a lawsuit against your divorce for divorce, but unlike most lawsuits, the spouse does not have to provide an answer or in any way respond to this filing. That said, there are a number of strategic reasons to file a response to a divorce petition.
The divorce process itself is a complex transaction and before, or near, the time of filing, you will need to work with your counsel to complete a required parenting class, if your court requires it, and a financial declaration to disclose your assets, liabilities, and costs of living. Without following the many requirements found in the Divorce Act and any given court’s local rules, the court may not give you a final divorce trial or divorce you if you have reached an agreement. To reach this point, skilled counsel will educate you about what the presumptions are in Indiana that divorce courts use in your divorce case. For instance, there is a no presumption for physical custody in favor of either parent (it is gender neutral), and the court is to presume a fair and equitable division of the marital estate is an equal division. This property includes all assets you and your spouse brought into the marriage and acquired during the marriage until the date of the filing of the divorce, as these are all in the marital pot to divide.
Knowing these presumptions, you can then begin to determine the evidence in your case to meet the presumption or to seek a different outcome (division of assets) in the court’s ruling. For instance, the Divorce Act presumes one parent will have primary custody and the other parenting time pursuant to the Indiana Parenting Time Guidelines. The non-custodial parent will pay child support. However, the trend (although not the law) is joint physical custody where parents have the children equally on a day-by-day rotation, such as 3-2-2-3 or 5-2-2-5. That said, the court will not make such an award unless your present evidence this is in the children’s best interests. In addition, the court can deviate from the presumption of an equitable division of property being equal to create a just result; in other words, it could divide the marital pot 60/40 in your favor. Again, this takes determining the evidence to present to the court to show this is fair, and then get it into an admissible format, such as at mediation to present at trial, if your case does not resolve before that.
The way you obtain evidence to present at trial—some of which you may have in your possession—is by determining your legal objectives with your divorce counsel and what evidence supports it. This is effectively the middle of the divorce action and normally takes a few months. This is called “discovery” and may include written questions to your spouse, requests to produce documents and/or depositions. There are discovery rules to allow you to obtain necessary records from a third parties as well if necessary for your case, such as a bank, doctor or school records. The discovery rules are found in the Indiana Rules of Trial Procedure, Rules 26 through 37. So, for example, your Child’s school and pediatrician records would be instrumental if you are seeking primary physical custody because your spouse, who is responsible for the children’s daily care, is not properly providing that care, the children are missing school, and the children are behind on immunizations. Effectively, once you determine what custody arrangement you seek and how you want the property divided, you work with your counsel to determine the evidence to support your position and then gather it or obtain it through formal discovery.
At this point in time, normally at least a few months have passed. To work toward your desired outcome at trial, a custody evaluation or Guardian Ad Litem may be requested by you to make recommendations to the Court as to what custody arrangement is in the children’s best interests; this is one of the many legal tools to assist with your custody case. In addition, discovery may be complete and with your evidence developed, your counsel will likely prepare a marital balance sheet showing the division of assets you seek with the percentage division to show the court how to reach your legal objective. At that time, most all courts require (by their local rules) the parties to go to mediation to try to resolve the case before the court will give a final hearing date. The requirement to attend mediation is not a deprivation of your right to free and open access to courts, and, while it may surprise you, most cases settle in whole, or in part, in mediation.
If your case does not settle in mediation, your skilled trial attorney will then work with you to develop a trial theme for why the court should accept your request for custody and division of the assets. Normally, this involves scripting your questions for testimony and your witnesses and developing the evidentiary foundations for your exhibits—and working through how a trial goes with objections and cross, re-direct, re-cross and re-direct so you know what to expect. Where many divorce litigants fail in court is not having a trial theme and supporting evidence; they are just angry and do not give the court the evidence it needs to support their requests of it and/or do not prepare for their own weak spots in their case. This should not occur if you have seasoned trial counsel and follow their direction. You will then have a trial, which may result in a general judgment or special findings. Special findings give you the reason the trial court decided the case a certain way and gives you a final chance to make your case because you can submit proposed findings to the court before it rules. Whether to seek special findings is a discussion you should have with your counsel. Hopefully, the court rules in your favor. If not, then you have the right to appeal the decision within thirty days of issuance to the Court of Appeals of Indiana.
While all attorneys have different approaches to a family law case, how well you prepare your case and trial theme determines how effective you will be in presenting coherent and relevant evidence at trial. Ironically, by taking a high level of preparation to be ready for mediation and trial, it seems to increase the chances of the case settling before trial (between the negotiations of the attorneys or at mediation). The material above is the general anatomy of a divorce case from start to finish in Indiana and reflects Ciyou & Dixon, P.C.’s approach to divorces, which is to advocate their client’s position in an effective and cost-effective way through a trial theme. If this approach is consistent with what you expect in your divorce counsel, maybe you should consider Ciyou & Dixon, P.C. as your divorce team.
Proven & experienced attorneys successfully advocating & resolving complex cases for over 25 years