January—the month of new beginnings. Many resolve to lose weight, exercise more, or take up a new hobby. Others, fresh from another holiday season filled with more sorrow than joy, decide they need a new life. Making January the highest filing month for divorces. Those stepping into divorce often feel like they are stepping off a cliff. Questions flood the brain—beginning with, “How do I even file for divorce?
Filing Documents
Petition for Dissolution–If you have decided to divorce, you begin the legal process by filing a Petition for Dissolution. A petition is a request. So, the Petition is a formal request for the Court to dissolve the marriage and return spouses to their unmarried state. This, along with other initial forms, gives the court the information needed to act on your request.
The filing of the Petition also starts what is known as the “60-day clock.” In Indiana, the judge cannot grant a divorce less than 60 days from the filing of this Petition. Labeled a “cooling off” period, this timeframe works in your long-term favor. While few file out of the blue, the pain of seeking divorce can drive some to thoughts of, “I just need this done. I’ll figure life out once over.” Understandable, but risky.
The decisions made in divorce shape the rest of life. Unless parties agree, financial decisions cannot be revisited after the divorce is granted. Likewise, without mutual agreement, changes in parenting decisions require a high burden of proof. So, decisions made hastily can haunt for years. Sixty days begins to seem too quick when people start to consider the long-term ramifications of their choices. Courts want to ensure people have at least 60 days before entering binding agreements.
A Petition for Dissolution must be verified, meaning the person filing swears to the truthfulness of the contents of the petition. Penalties for perjury can be imposed for any untrue statements, so accuracy is key.
You will need to include both spouse names, address/es (and how long lived there to ensure Indiana has jurisdiction), date of marriage, date of separation, names and birth dates of children, and the results (relief) you desire from the court. For Indiana to have jurisdiction, you must have lived in Indiana for at least 6 months and your county for at least 3 months.
For those filing on their own behalf, forms are available. If you consult an attorney, they will fill out the needed forms and file them for you. For those working with a mediator without attorneys, the mediator can assist you in filling out the forms to assure everything is in order. However, mediators cannot file the petition. This is considered representing you. Since mediators work with both of you, they cannot represent either. But, after the mediator helps ensure the forms are accurately completed, you can easily drop the completed paperwork in the mail to the Clerk’s Office to file. Then, mediators can file everything else on behalf of the two of you.
Other documents to file with the Petition
Appearance form—The Court will also need an appearance form—either your attorney will file this document stating that they are “appearing” on your behalf.
Or, if you do not hire an attorney, you will file a “Pro Se” appearance form. Pro se is Latin for “of myself.” Meaning you are appearing on your own behalf.
Civil appearance form—This provides the Court the names and Social Security numbers of both spouses and children. These are often needed for the court to act on agreements of the two of you. They are kept private.
Service form—This form “serves process” on your spouse, letting them know you have filed for divorce. For those concerned about being the person to tell your spouse you desire a divorce or those who have tried to get their spouse to cooperate in seeking divorce together but failed, you would file on your own behalf. The court then formally serves notice on your spouse that the divorce is moving forward. If you are represented by an attorney, they will file this along with all the forms needed.
If you and your spouse file a “Joint Petition for Dissolution,” that would mean you are both filing together. Even if one spouse is requesting the divorce and the other does not want it, you can agree to jointly file. The benefit is that neither is “served.” Meaning no sheriff shows up at work or home to present the paperwork of the divorce being filed. Instead of the service form, you would file a “Motion to Waive Process.” This lets the court know (along with the joint petition), that you both are aware of the divorce being filed and neither needs formal notice. You can do this either filing on your own (you will need to create the form as it is not part of the online package), or the mediator can provide this, if you are using that service.
Agreement
For the court to grant a divorce, you will (after at least 60 days from the filing of the Petition) need to file an agreement. This is the most important document you will file. The Agreement tells the court what you desire to do with all the assets and liabilities in your marital estate, your decisions on parenting time, child support, what you are doing regarding taxes, and whether there will be any spousal maintenance. The court cannot grant a divorce without this agreement. The court has discretion whether to accept the terms.
Forms for agreement are included in the online forms. However, these are truly geared toward very simple situations—such as couples renting their residence and with only a few bank accounts, cars, and credit cards to address. The more property you have, the more details you need to understand to make the best decisions. And, the riskier it is to simply fill out forms on your own.
Professional guidance creates far more protection and security for moving forward. Professionals listen to what each of you prioritizes, then offer options to achieve those with the resources you have accumulated. Some couples fear they are required to sell the marital home to split the equity or must pay penalties and taxes to split retirement accounts. Working with a professional who can give information about the range of alternatives available helps you achieve your desired ends.
If each of you is using attorneys to represent you, the attorneys will often negotiate on your behalf with the other attorney. The role of each attorney is to push for the best outcome for their client. The process is intentionally adversarial, with the premise being that zealous advocates for each side create the most informed decisions.
Some attorneys are very good at seeking resolutions that work for the family as a whole. Others, while concerned for the family, focus more on their ethical duty to serve the interests of their client. Many attorneys tend to take over the decision-making role to provide what they see as the best protection for their client.
If agreement cannot be reached, attorneys often seek mediation. This version is called “shuttle mediation.” Generally, each spouse will be in a separate room (or online breakout room) with their attorney. The mediator then shuttles between the rooms as attorneys negotiate through the mediator to settle issues. If agreement is reached, one of the attorneys or the mediator writes the agreement for the court.
If you choose to hire a mediator separate from being represented by an attorney, the mediator may use shuttle mediation or, more often, will meet with the two of you together. The benefit of meeting together is:
- You both hear the information at the same time
- You hear each other’s questions, concerns, and reasons for requests
- The discussions of options prove more fruitful as the mediator guides you toward common ground.
Couples also often find the same-room mediation process helps them rebuild the communication skills needed to work together (either in co-parenting, running their business, or other areas) after the divorce is completed.
Your mediator then writes the agreement with the appropriate language to protect your decisions and make them enforceable should there be disagreements down the line. Working with a professional provides peace of mind and secure decisions.
Finalizing the process
Depending on which court your case is filed in, you may need to attend a hearing in front of the judge. You would certainly do this if you don’t come to agreement on all the relevant issues. The judge would set a hearing, listen to each of you as you offer your positions on the issues, and then make a ruling on all the issues. But, if you have come to agreement, you can file a Motion to Waive Final Hearing to ask the judge to forego the hearing.
Decree of Dissolution
This is the final order of the judge to dissolve the marriage. If you are filing on your own, this form is included in the online forms. Or, the attorney or mediator can prepare this for you.
As you consider divorce, understanding the process removes some of the unknown and the fear. If you desire more information, we are happy to talk with you and assist you in choosing the best process for your situation.
If you would like more information on navigating all the decisions divorce requires, contact Resolution Mediation by clicking HERE or calling 317-793-0825. We look forward to serving you.
As always, the above is for information only. Seek a professional for guidance in your personal situation. This is an advertisement.
