09 Apr Indiana – No Fault State
If you’ve ever watched an old movie or TV show and heard reference to a spouse having to prove infidelity or abuse in order to get a divorce, rest assured that those days are long past (at least in Indiana). While all fifty states now offer some version of “no fault” divorce, some states have made this option available sooner than others. It was only in 2010 that New York passed a law allowing married couples to get a divorce without having to prove one party’s fault.
So what does it mean when we say that Indiana is a “no fault” state? It means that when a married couple wants to get divorced, they are not required to prove that the marriage is ending due to someone’s fault. Rather, married couples can simply decide to end their marriage for any reason or no reason at all. It is important to note that Indiana does technically still allow married individuals the option to plead fault on behalf of their spouse, but those bases for fault are limited to the following: felony conviction of the other spouse; impotence; and incurable insanity lasting for more than two (2) years. Generally speaking, however, these “fault” grounds are almost never used, and married couples typically request a divorce based on no-fault.
In Indiana, when no fault is being claimed, we use the phrase “irretrievable breakdown of the marriage.” Other states use various versions of this approach, and one that might sound more familiar is “irreconcilable differences.” Therefore, depending on which state a couple is in, the attorney or spouse filing the Petition for Dissolution simply needs to include those magic words. In Indiana, the Petition for Dissolution will state something along these lines: “There has been an irretrievable breakdown of the marriage and the marriage should be dissolved.” So long as other pleading requirements are met, this is all that the Court needs to allow a divorce action to move forward.
The issue of fault can be confusing, and leaves many wondering, Why were people ever required to prove fault? Shouldn’t people be able to end their marriage whenever they choose? While fault-based divorce is essentially a thing of the past, the reasoning behind it is still prevalent today and affects some other aspects of the divorce process. In short, public policy favors marriage and the courts historically made it difficult for people to get a divorce – and in some states for certain periods of time, it was nearly impossible. Consider New York state in the 1950s. There, a spouse was required to not only plead that his/her spouse was adulterous, but also had to prove it. Even after the proof was offered – pictures, documents and even eyewitness accounts – the courts required a one-year waiting period before a divorce would be granted. These kinds of roadblocks that were specifically designed to prevent people from getting divorced often caused people to resort to semi-drastic measures to end their marriages. In some instances, people would travel to other states or even other countries to get a divorce. Reno, Nevada for example, was a popular destination. Only requiring a 6-week stay in order to establish residency, people could travel to Reno, choose from one of the many available grounds for divorce, and then leave.
Suffice to say that the states have made incredible strides in terms of recognizing that some marriages really do need end and allowing people to do so in a reasonable manner. While there are still current aspects of divorce that have roots in the public policy’s favor of marriage, these aspects are relatively minor and do not cause great hardship. Many states, including Indiana, do still require a mandatory waiting period between the filing of a Petition and the divorce. In Indiana, individuals must wait at least sixty (60) days after the filing of the Petition for Dissolution before a divorce will be granted. This is often referred to as the “cooling off period.” Essentially, the rules require that parties wait at least 60 days so that they do not move too quickly or miss any opportunity for reconciliation. For couples who have no children and little to no assets or liabilities to distribute, this waiting period might be a slight annoyance. For most couples, however, the divorce process takes some time and they are not ready to finalize anything before the 60-day period regardless.
Above we discussed that a Petition for Dissolution of Marriage must include a reference to the grounds for divorce – irretrievable breakdown of the marriage. So what else does the Petition require? The most important initial aspect is where the parties live, and therefore the jurisdiction in which the Petition must be filed. In Indiana, a Petition should be filed in the county in which the couple has resided for the preceding three (3) months. Parties also have the option of proceeding in a different county, so long as they agree. From there, the Petition will provide certain details concerning the marriage and the children of the marriage, if any. The following information should be included: the date of the marriage; the number of children of the marriage; the children’s name and dates of birth; a statement as to whether the wife is currently pregnant; and a statement as to whether either party is named in any other pending legal proceedings involving domestic violence, child abuse, protective orders or criminal charges. Petitions will also often include a general statement indicating that the parties have accumulated property and liabilities throughout the term of the marriage, and a request that the court enter an order regarding the distribution of the same. Lastly, the Petition should request that the court enter an order restraining both parties from transferring, encumbering or concealing any assets of the marriage while the matter is pending. This will ensure that whatever assets the parties had at the time the Petition was filed will still be in tact and eventually be distributed between the parties when the divorce is granted.
This information, even when broken down, remains fairly complex and confusing. While individuals are certainly allowed to proceed with their divorce without legal representation (pro se), it is always recommended to seek the advice of an attorney experienced in family law.
Our next post in this blog series will discuss tips on finding the best attorney to meet your needs, as well as outlining what should be discussed in your initial consult with the attorney.