Important Announcement from Van Winkle Legal

Clients and Friends of Van Winkle Legal,

Your safety, and the safety of the lawyers and staff of Van Winkle Legal, are our highest priority. To continue delivering high quality legal services to our clients, we closed our physical office until further notice in hopes of minimizing the spread of the COVID-19 virus. Our lawyers will be telecommuting and they are ready and able to meet with you by videoconference using either Zoom, FaceTime, or phone. We are also able to conduct remote execution of estate planning documents to meet our clients’ needs. Our normal business hours will remain in effect. Thank you for your patience as we navigate through these highly unusual circumstances.

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FAQs About Divorce

The information on this page will provide you with basic information and answers to some frequently asked questions. However, this information is not legal advice and is not meant to be a replacement for competent legal counsel. There are no two cases alike, and as such, you need legal advice that fits your needs. Van Winkle Legal is here to provide you with the advice you need to face your situation.

What will happen at my initial consultation?

For most people, meeting with an attorney is not a frequent occurrence. We understand people are usually coming to see us at a time when they are facing some rather stressful issues. We will try to bring a sense of calm to the table. We encourage you to bring a list of questions to the consultation. There are no questions off-limits. You are paying for the consultation, so be sure to ask what you want to know. We will also spend some time discussing your options and what you can expect during the process. Remember this is the time for you to determine the best course of action for you and your family. You can expect the consultation to last an hour to an hour and a half. The consultation should also help you determine whether our firm is a good fit for you and your case goals.

If you decide to retain our office, you will need to sign a retainer/representation agreement and pay the initial retainer fee. You will not be pressured by our office to retain our services. You can pay your consultation fee and take the time you need to make your decision.

If you do not feel certain that our firm is the right firm for you at the time of your consultation, then we encourage you to take some time to meet with other attorneys to help you make the right decision.

You are free to bring family or friends to the office with you on the day of your consultation for emotional support. We recommend that whomever you bring to the office remain in the waiting room. Should you need to talk to your support person during the consultation we are happy to give you the time to do so.

Conversations between a client and attorney are privileged and protected from disclosure. This ensures full disclosure of important information. If a third party is present when the attorney and client communicate, the privilege is lost and the third party can be forced to testify about what he or she heard during the communication.

There is also a chance (albeit a small chance) that you could have a falling out with your support person in the midst of your case and that person could divulge your conversation to the other side.

What do I need to bring in when I come to meet my attorney at the initial consultation?

The answer to this question depends on where you are in the process of your case. If you have questions (and you most likely do), we recommend you bring a list so you are sure to not forget anything. If the case has already been filed with the court, you should bring whatever paperwork you have received.

If you have the following documents accessible, you can bring them with you as we will ultimately need them in order to resolve your case:

  1. current income information for both parties (paycheck stubs, profit and loss statements, etc.);
  2. recent tax returns;
  3. proof of child-related expenses (child care, insurance, health care, tuition, etc.);
  4. documentation regarding assets and debts (e.g., list of personal property, 401(k) and other retirement statements, real estate appraisals, jewelry appraisals, loan statements, mortgage statements, credit card statements, bank account statements, etc.);
  5. previously issued court orders regarding this matter;
  6. previously issued court orders regarding a duty to pay child support for children not of this relationship;
  7. documents regarding any ownership in a corporation, limited liability company or another business entity;
  8. documents regarding any inheritances or interests in a trust for either party; and
  9. any other document you think might be relevant.

Can I represent myself?

You are allowed to represent yourself in court. However, it is strongly discouraged. Judges can quickly grow frustrated with the person who represents herself/himself (referred to as a “pro se” litigant). Not knowing how to properly introduce documents into evidence or properly question a witness can have devastating consequences. You should also keep in mind that the judge will expect you to have the same understanding of the law as that of an attorney.

What is the difference between a divorce and a legal separation?

A divorce will result in a complete dissolution (end) of a marriage. A legal separation leaves the marriage intact unless one of the parties requests that the court convert the case to a divorce. The procedures are similar to those necessary for a divorce. The parties may be able to enter into an agreement setting forth the terms of the legal separation. If the parties are not able to reach an agreement, the court will issue a Decree of Legal Separation, which will be effective for a period of one year. The legal separation will give each spouse the time he or she needs to work on saving their marriage while having a “playbook” to control issues such as custody, parenting time, payment of debts and possession of assets.

Do I need a reason to get a divorce?

You do not need a reason to get a divorce aside from believing your marriage is damaged beyond repair (this is what the courts refer to as “irretrievably broken”). Since Indiana is a “no-fault” state, issues of adultery, mental or physical abuse or abandonment do not need to exist in order to get divorced.

How long must I live in Indiana to be able to file for divorce?

One of the parties to the divorce case must have resided in Indiana for a minimum of six months immediately before the filing of the case. One of the parties must also live in the county for three months immediately before the filing of the case unless the parties agree to file in another county.

Does it matter which spouse files first?

While there may be tactical reasons to file first, the court does not give any type of preferential treatment to the first party to file. Keep in mind that the person who files the case is generally required to pay the court’s filing fee (filing fees range from $141 to $161 in the Indianapolis metropolitan area).

Can my spouse and I use the same attorney?

It is not possible for the same attorney to represent both parties to a divorce. In a divorce, each spouse has certain rights and/or obligations. It is not possible for an attorney to represent both parties because of the inherent conflict between the rights and obligations of each party. This does not mean the attorney cannot help his/her client and the spouse work out a resolution of their case. The attorney should make sure the other party fully understands the attorney is not representing his/her interest. The attorney should also let the other party know they have the right to their own attorney.

How long do I have to wait before my divorce can be final?

In Indiana, there is a mandatory 60-day waiting period before your divorce can be finalized. It is uncommon for a divorce to actually be finalized in the 60 days. The reality is that most divorce cases take a considerably longer period of time to finalize. This is especially so in cases where the parties have a considerable degree of hostility toward one another or have complex financial holdings.

What is mediation and how does it work?

A growing number of Indiana courts now require spouses to mediate the disputed issues in their case. The mediation is conducted by a third-party attorney. The parties normally share equally in the cost of the mediator. The mediator works with the parties and their attorneys to help them reach an agreement on the contested issues. The mediator is often able to help the parties resolve their differences by bringing a different perspective to the table. Since the mediator practices law as well, he or she can help the parties understand how the judge would view a certain issue. Most clients are hesitant to voluntarily participate in mediation, but it can often allow the parties to resolve the case without the emotional and financial toll of a trial.

What should I wear to court?

It is important that you show the judge you understand the significance of appearing before him/her. Therefore, we recommend you dress conservatively and professionally. A suit and tie for a man or a conservative dress or pantsuit for a woman is appropriate. If you do not own appropriate professional clothing, it is not necessary to purchase some. Instead, business-casual clothing, such as dress pants or khakis and a nice shirt, should suffice. Casual attire, such as shorts, t-shirts, jeans, short shirts, tank tops and sandals, are not appropriate. Women will want to avoid low-cut, revealing or exceptionally form-fitting clothing. You want the judge to have a positive first impression of you.

What if my spouse does not want to get divorced?

The divorce will take place as long as one spouse wants it even if the other spouse does not want to get divorced. A common tactic employed by the spouse who does not want to get divorced is to become extremely argumentative and uncooperative through the process. This will result in the case taking more time to finalize.

My spouse has asked me to move out, should I do it?

The answer to this question depends on your goals with respect to the outcome of the case. If you want custody of your children, then it would almost certainly be a bad idea to voluntarily vacate the home. The court typically prefers to leave the children in the home to avoid disruption. Thus, if you have moved out and left the children in the home with your spouse, there is a good chance the court will grant custody to the spouse. If you want possession of the house, you should stay in the house as it is normally not advisable to act in a way that is contrary to your desired outcome. Your safety must come first. Thus, if needed, you could vacate if you and/or the children are in danger.

Can I have my marriage annulled?

Annulments are allowed in very limited circumstances under Indiana law. Typically, you must prove to the court that the marriage was “brought about by fraud.” While this seems like a simple thing to prove, the reality is that it is very difficult. You must be able to show the court that absent the fraud, you would not have entered into the marriage. We often hear things along the lines of “I would not have married him if I had known he is a jerk.” This will not be sufficient. An example of something that often rises to the necessary level of fraud is willfully lying to your would-be spouse about your ability to have children when it is abundantly clear your would-be spouse fully expects to have children.

Can I incur debt and/or use my credit cards during the divorce process?

Until such time as a court orders otherwise, you are free to use your credit cards and/or incur debt. However, it is important to keep in mind that any debt you incur after the filing of the divorce case will be your sole responsibility to pay. It is common for the parties to agree or the court to order each spouse to not incur any debt in the name of or joint with the spouse.

Do I have to file a joint tax return with my spouse?

It is often in the best interest of both parties to file a joint tax return for the last tax year before they are divorced. The primary reason for this is that a large number of tax deductions and exemptions are not available if your filing status is married but separate. However, we recommend you and your spouse consult with a qualified accountant. If you are to receive a joint refund, it is important that the court approves an agreement between the parties regarding the use of the money or you ask the court to issue an order in the event an agreement cannot be reached.