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divorce and family law

About family law practice

Family Law is one of the pillars of our practice, and includes Dissolution of Marriage (Divorce), Juvenile Paternity, Child Custody, Child Support and Adoptions.

Common Questions about divorce

gavel on table

1. what is the difference between divorce and a dissolution of marriage?

These two terms refer to the same concept.  Divorce is no longer a legal term in Indiana, although all of us use it to describe the termination of a marriage.  Divorce, in a legal sense, refers to the former concept that required proof of wrong doing to be able to end your marriage..  The modern equivalent that has been adopted by most states, including Indiana, allows  termination of the marital relationship, without a showing of “fault”, called “dissolution of marriage.”

2. What is the basic procedure and time frame of a dissolution of marriage action?

Most dissolutions have three distinct, direct contacts with the legal system:

(A)The filing itself;

(B)The provisional hearing; and,

(C)The final hearing.

The actual filing consists of a general plea to the Court to dissolve the marriage.  The document produced is called a “Petition for Dissolution of Marriage,”  and contains basic information about residence, date of marriage and separation, children, a request to divide property and a plea to dissolve the marriage due to “irretrievable breakdown”.  The filing of this document with the Court begins the process.  In Indiana, you must wait 60 days after the filing date to finalize the action.  This does not mean you will be divorced on the 60th day, but merely requires that you wait at least that long before you can conclude the case.  Since you are still married for at least 60 days after filing, there is often a need for “rules” to make sure bills are paid, children are supported and peace prevails.  The law allows the parties to seek a temporary order during the waiting period to make the process more predictable. A week or so after filing, we usually go to Court to get an order defining temporary possession of property, apportionment of debts, child custody, support and visitation. This is called the “provisional hearing.” This order is the “law” in your case until the final hearing.  Please remember, it is only temporary and determines nothing on a permanent basis.  The final decree can be completely different.

The last stage is the final hearing that produces a Decree terminating your marriage and dividing all marital property, bills and determining child custody, support and visitation.  Generally, no changes in property distribution or debt responsibility can occur after the Decree.  Support, custody and visitation can always be changed as circumstances require to adequately provide for your children.

3. what will child support be?

Much of the individuality has been removed from the assessment of support.  We have rigid statewide guidelines mandated by the federal government.  Gross weekly income is placed into a formula to determine support.  The non-custodial parent is required to pay his/her share to the custodial parent.  All payments must be made through the Clerk of the Court on a weekly basis.  A worksheet to determine support must be completed and filed at both the provisional and final hearings.

4. what is parenting time?

Like child support, guidelines have been adopted state-wide to provide minimum visitation for non-custodial parents. Visitation is now called “parenting time.”  A copy of the Parenting Time Guidelines is available from the office, if it has not already been provided.

5. can the dissolution of marriage be contested?

Under the old divorce laws, the actual termination of the marriage could be challenged. Today, if the parties push the correct buttons, the actual dissolution is a certainty.  The only “proof” needed is the assertion by one of the parties at the final hearing that the marriage is irretrievably broken.  While the final order can be delayed, it cannot be stopped so long as one person wants it.  Of course, property division, debt apportionment, child custody, support and visitation can be the subject of a contested trial.

6. what will i have after the divorce is over?

This, of course, is the ultimate question once you decide your marriage cannot continue.  From a material point of view, both parties will get something; both parties will have bills of the marriage that they alone must pay and both will have less than they had before.  The law is no longer gender biased.   Alimony no longer exists and in most cases, neither party will owe the other any support or maintenance after the marriage is over.

7. what will happen if my spouse fails to pay a bill that the court orders him / her to pay?

Court orders in a dissolution proceeding only control the parties.  A Court order in a dissolution cannot and does not affect creditors of the marriage that both husband and wife obligated themselves to pay.  Therefore, creditors can continue to look to both parties for payment notwithstanding the court decree.  If a spouse fails to pay a bill assigned to him/her by Court order, the other party can enforce the divorce order by filing a contempt proceeding.  The divorce decree is not a defense to paying a bill.  Likewise, creditors will not generally agree to relieve one of the parties from the obligation. Also, please remember that placing an ad in the paper disclaiming responsibility for another’s debts has no legal value and little practical effect.  Generally, all of us are responsible for the debts we incur in our names.  The rule of thumb is, if you “sign” for something, you must pay for it.

8. are restraining orders and protective orders worth the paper they are written on?

Often orders to keep the parties apart or to prohibit sales of marital property are in force during the waiting period.  While they may not provide totally effective relief, violation can result in jail time for the offender as either an act of civil contempt or a criminal offense.  Orders of Court are intended to be obeyed.  An independent action can be initiated by one or both of the parties for a “Protection Order.”  If it is filed while your dissolution is pending, the two cases will be joined.  Please talk to us before seeking a protection order on your own.

9. is there a relationship between payment of child support and visitation?

No!  The non-custodial parent has a duty to pay child support as ordered and a right to visit with his/her children.  Non-payment of support does not justify withholding visitation.  Both are violations of the law and punishable by contempt.

10. how are attorney fees handled in a divorce?

Most attorneys offer divorce services for a flat fee if the case is “uncontested,” meaning there is no significant trial required.  All lawyers define “contested” in their own terms.  While I charge a flat fee, I also keep track of time spent.  At some point, when my time in your case exceeds the norm, I reserve the right to begin charging an hourly fee in addition to the flat rate. See the contract we signed for your specific obligations to this office. You will be forewarned before the hourly fee is assessed.  This seldom occurs since most divorces are negotiated to a fair and satisfactory conclusion.  Under Indiana law, one party may be required to pay the other party’s attorney fees. The trend, however, is that each party pays the attorney they retain.

11. do we need two lawyers to get a divorce?

Technically, you do not.  But experience shows that it is quicker, easier and less traumatic for everyone if both parties are represented.  Please remember, an attorney can only have allegiance to and represent one party in a lawsuit.  Therefore, in a divorce, the lawyer can only advise the person he represents.  This leaves the other person with no one to advise them, which almost always creates problems in negotiation, settlement and/or trial of the case.  (See related question 17 below.)

12. what is a "no fault" divorce?

Generally, people call our divorce statute a “no fault” statute.  Unlike the old law, no one needs to assess blame on another to get a divorce.  In fact, the conduct of the parties is generally irrelevant.  One need only allege and testify that their marriage has been “irretrievably broken” to get the action finalized.

13. does the wife always win a divorce?

There are no winners or losers in a divorce.  Everyone ends up with less than they had during the marriage, unless, of course, one party totally concedes everything to the other.  Many factors determine the ultimate distribution of assets and we will carefully examine and advise you about those factors as your case progresses.  Theoretically, both parties are equal in a divorce.  No one has an inherent advantage.

14. can i stop the divorce once it haas been filed?

Yes!  In fact, I’m happy when people successfully reconcile.  The person who files the action can generally dismiss it anytime before it is final.

15. Do I have to go to court?

If you case becomes contested in any way, you must testify in Court. If there are no contested issues, you may never need to see the courtroom. An agreement can be electronically filed.

16. where is the court and who is the judge?

In Vanderburgh County, all divorces are filed in Superior Court, Division and heard in Family Court, which is located on the first floor of the Court section of the Civic Center.  Four of the Superior Court judges and several magistrates share this Court.

This information is general to say the least and is intended to give you a little more information about divorce and family law. I will be happy to answer any questions you might have at any time concerning family law.

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