Legal Rights and Remedies That Do Not Exist in Indiana
Most seasoned divorce attorneys have had clients who have lived in different places or have friends and family divorced in other states; sometimes this brings pre-conceived notions to the table about what is possible in a divorce in Indiana. This blog addresses the most common misunderstandings of litigants in proceeding in Indiana.
The first misconception is alimony. In many states, the spouse without earning power can obtain long-term alimony. It is not uncommon to hear about very large monthly (or weekly) alimony awards in states like California. This remedy is not available in Indiana, for instance, to a spouse who has foregone a career to raise the children. However, rehabilitation maintenance may be ordered to be paid for three years to assist the other spouse in educational training to re-enter the workforce. There are other ways an Indiana divorce court may equalize this situation with the skilled presentation of counsel, such as with an unequal division of the marital estate.
A second incorrect understanding of Indiana law is there is a maternal presumption, whereby mothers are automatically favored for receiving physical custody. It is true that mothers' typically receive custody more than fathers. However, this is likely a reflection of who is the primary caregiver. In Indiana, that is still mothers more often than fathers. However, that has to be put into the evidence and demonstrated at trial. Mother’s do not automatically obtain custody.
An equally misunderstood point is litigants who believe joint physical custody is the norm. While this is a trend, this is not the law in Indiana at this time. Normally, to prevail in joint physical custody, the evidence has to demonstrate how this can work and be in the children’s best interests. This noted, there is a growing body of legal thinking that the fundamental right to raise a child embodied in the United States Constitution mandates this. This will be a case that may make its way to the US Supreme Court someday.
Indiana is not one of the community property states, which means that property acquired during the marriage is equally divided. The Indiana divorce court may well divide property this way, but it does not have to do so. It has to divide the property brought into the marriage, acquired during the marriage, and up to the date of filing in a just, equitable and reasonable way. This may not equate to an equal division of property acquired during the marriage.
Finally, a number of marriages are filed based on unfaithfulness. However, bad-acts or fault-based divorce has not been the law in Indiana or the rest of the United States for a number of years. This is often frustrating for the spouse who was “cheated upon” as there is often an overwhelming desire to put this into evidence. Generally, it is not relevant and may alienate the Court. On the other hand, it may be relevant if it shows marital waste (extravagant amounts spend on the lover) or this third person had some negative impact on the children.
While these are bright-limits on what Indiana Court’s cannot order under the Divorce Act, there are many other tools to come up with a fair, just and reasonable divorce that accounts for virtually every situation before a Court. The key is working with a skilled attorney to pull all of this information together through discovery and other techniques, such as private investigations, to present to the Court. This blog post was written by attorneys at Dixon & Moseley, P.C. who handle divorce and paternity cases throughout the state. It is not intended to be legal advice or a solicitation for services. It is an advertisement.
