Indiana is a no-fault divorce state, which means that if either spouse wants to seek a divorce, he or she can petition the court to do so, without any requirement that the other person was at fault (i.e. adultery, etc.). This also creates the circumstance that if one spouse wants a divorce, and the other wants to salvage the relationship, a divorce will occur nonetheless.
The divorce process starts when one spouse files a Petition for Dissolution of Marriage with the court. When it comes to custody and division of marital property, the statutes contemplate that both spouses are on equal footing legally. This means that there is no race to file first, at least as the law is concerned, and whether you are the Petitioner or the Respondent, the laws do not differentiate.
However, in some cases, it may be appropriate to file a cross-petition for divorce. This means the respondent, the person who did not initially file, files a petition for divorce as well. Why might this be useful?
First, the petitioning party may state something that is slanted, such as the Petitioner is a fit and proper person to have custody of the child(ren). If you are the respondent, you may be fit and proper too, and may want to file a petition to say so, so the court knows your legal position. Another reason is that the petitioning party may withdraw their petition, and their choice. Therefore, the respondent, if he or she wants the divorce to occur just as well, he or she can file a cross-petition, which would keep the cause of action alive, even if the original petitioning party wants to withdraw their original petition (if there is no cross petition, the case could be dismissed and need to be refilled).
We hope that you have found this information to be helpful. This is not intended to be legal advice. If you have questions or concerns about your case involving a petition for dissolution of marriage, or a cross-petition, Dixon & Moseley, P.C. frequently handles divorce matters, and can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.