Preparing for Divorce: Q&A With Carmel Family Lawyer Joshua R. Hains

As you begin the process of preparing for a divorce, you will probably have lots of questions about a broad range of issues. While you should ask an attorney for personalized legal advice that is tailored to your unique circumstances, there are some answers that will be the same (or similar) for spouses who are preparing for divorce under a variety of scenarios.

If you live in Carmel, Indiana and are contemplating a divorce, here are answers to some frequently asked questions from family lawyer Joshua R. Hains:

Q: Can I file for divorce if my spouse wants to stay married?

Yes. Most likely, you will file for a no-fault divorce. When you file for a no-fault divorce, you are representing to the court that there has been an “irretrievable breakdown” of your marriage, which means that there is no realistic hope for a reconciliation. You do not need your spouse’s consent to file for a no-fault divorce. In fact, disagreeing over whether to get a divorce can be considered evidence that a marriage is “irretrievably” broken.

Q: If my spouse and I are both ready to end our marriage, should we file for an uncontested divorce?

Maybe, but it will most likely be in your best interests to file for a contested divorce. In family law, a “contested” divorce does not mean a divorce in which the spouses are in disagreement over whether to split up, but rather one in which the spouses have different goals with regard to property distribution, parenting time, child support and spousal maintenance. Filing for a contested divorce does not mean that your divorce will end up in court, but that you will have the opportunity to make sure you achieve a desirable outcome.

Q: Is Indiana a community property state?

No, Indiana follows a unique rule when it comes to distributing property in a divorce. In Indiana, all property owned by either or both spouses is put into a “marital pot.” The law then presumes that a 50/50 distribution is the most equitable result, although either or both spouses can challenge this presumption during the divorce process.

Q: Will I have to give up my retirement savings or pension? Will my spouse be entitled to a share of my business?

The answers to these questions will depend upon the unique circumstances involved in your divorce. As a result of Indiana’s “marital pot” rule, your retirement account, pension or business could potentially be subject to distribution in your divorce. However, this does not necessarily mean that you will need to give half to your spouse. For example, if your spouse has retirement savings as well, it may make the most sense for you to each keep your respective retirement accounts.

For more information, you can read:

Q: What are my options for seeking custody or visitation?

Indiana law recognizes two different types of custody: legal and physical. Legal custody is the right to make important decisions for your child. Physical custody is the right to provide a permanent residence. Additionally, with regard to both legal and physical custody, parents can receive joint or exclusive rights (although, absent special circumstances, parents will typically share legal custody). If one parent has primary physical custody, then the other parent will have visitation, and the parents will need to work out a parenting time schedule that reflects the best interests of their children.

Q: Can I seek custody if I work full-time?

Yes, if you work full-time you can still seek physical custody of your children in your divorce. However, to make sure you have the best possible chance to secure the custody rights you desire, you should begin preparing now to show that your desired custody arrangement satisfies the “best interests” standard.

Q: Is co-parenting an option in Indiana?

Yes, acceptance of co-parenting as an alternative to traditional custody and visitation schedules has grown in recent years. If you are interested in co-parenting, this is an option that we can help you explore.

Q: If my spouse has primary custody, will I have to pay child support (or vice versa)?

This is how it works in most circumstances; however, to make sure you know whether you or your spouse will be obligated to pay child support, you will need to apply Indiana’s Child Support Guidelines.           

Q: I’m concerned that my spouse may be hiding income. Is there a way I can find out during my divorce?

Yes, during the divorce process, each spouse is entitled to comprehensive access to the other’s finances. If you believe that your spouse may be hiding income or assets, we have forensic accounting tools we can use to make sure you have the information you need during your divorce.

Q: How will the Tax Cuts and Jobs Act affect my divorce?

Under the Tax Cuts and Jobs Act, spousal maintenance (or “alimony”) payments are no longer deductible by the paying spouse, and spouses who receive alimony must report their payments as income. If you or your spouse will be receiving alimony, this new tax treatment could substantially impact how you negotiate the financial aspects of your divorce.

Q: If my spouse and I are willing to agree to a settlement, will I still have to go to court?

Yes, even if you and your spouse negotiate a divorce settlement agreement, finalizing your divorce will still involve going to court. However, in this scenario, the court procedures are minimal; and, if your agreement addresses all of the relevant considerations, you can expect the judge to approve it without significant inquiry.

Q: What should I be doing now to prepare for my divorce?

From collecting important records to considering your options regarding mediation and collaborative divorce, there are a variety of steps you can take now to start preparing for your divorce. For more information, you can read: 4 Ways You Can Plan Ahead for Your Divorce.

Contact Hains Law, LLC for a Free Consultation

At Hains Law, LLC, our practice is devoted to representing clients in divorces and other family-related legal matters. If you live in the Carmel area and would like to discuss your divorce with an attorney, we encourage you to call (317) 588-2883 or contact us online to schedule a free initial consultation.


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