10 Divorce Myths That Just Aren’t True in Indiana
You can find just about anything with a Google search. But the fact you read it on the internet doesn’t make it true. It can be hard to tell what’s true when you’re clicking through the internet. Here are some myths we hear over and over again – that just aren’t true:
Myth 1 – If your spouse doesn’t want to end the marriage, the judge might not give you a divorce.
Under Indiana law, the court will grant a divorce if it finds that there has been an irretrievable breakdown of your marriage. If you testify that: (a) Yes, the marriage is irretrievably broken and, (b) no, there’s nothing that can be done to save it, then you will get your divorce. Your spouse may be able to slow the process down, but cannot stop it.
Myth 2 – Your divorce will be final in 60 days.
Indiana has a mandatory 60-day waiting period from the date when you first file the paperwork asking the court for a divorce. Sixty-one days is absolute shortest period of time before a divorce can be final. In central Indiana, you might be able to get divorced in a couple of months if you and your spouse agree on everything. For most of couples, a divorce takes 4-9 months. For high-conflict couples, it can take even longer. (Sorry, but that’s the truth.)
Myth 3 – Courts favor Moms in custody fights.
The old Maternal Preference Rule has been prohibited for decades. As a matter of law, parents start on equal footing, regardless of gender. Do women get custody more often? Yes. But that’s a reflection of cultural choices made before the divorce. Stay-at-home Dads are no longer an oddity, but stay-at-home Moms definitely outnumber them. We have not seen any judicial gender bias in central Indiana. The courts in our area focus on what’s best for the children without regard to parental gender. (And, yes, we have won custody cases for both Dads and Moms.) Gender may come into play when an infant is breast feeding.
Myth 4 – If your ex doesn’t pay child support, you can deny parenting time (visitation).
Wrong. Child support is not an admission price you pay to see the kids. Trying to treat support as a condition for parenting time can get you in a lot trouble. Refusal to allow the non-paying parent access to the child can even land you in jail. And it works both ways: Denial of parenting time is not grounds to stop paying child support. Refusing to pay child support can put you in jail, too.
Myth 5 – Teenagers can pick which parent they live with.
Nope. Children do NOT get to pick who they live with. Ever. At least not until they turn 18. Or get married. Or enlist in active duty for the U.S. Armed Forces. In custody cases, the Court is required to consider the wishes of the child, with greater weight given to the wishes of a child over the age of 14. But the Judge can find that the child’s best interests override his/her wishes. The child has a voice, but not a vote.
Myth 6 – You can give up child support in order to settle the case.
Nope. The number one reason we’ve seen for Court refusal to approve settlements – child support that is too low or not required at all. Indiana has a Child Support Calculator that must be applied unless deviation is in the child’s best interests. In the eyes of the law, it is your child who has the right to financial support, not you. So, a parent cannot agree to give up the child’s right.
Myth 7 – You’ll get more property if you testify about your spouse’s affair, sexual preference, gaming obsession, or . . .
Indiana is considered a “no-fault” state. Evidence of bad behavior is severely restricted. Talking about the affair on the witness stand can make you seem petty. Most courts don’t want to hear about an affair, unless it actually caused harm to your children or the martial estate.
Myth 8 – If property is titled to me (in my name, bought by me), the Court can’t give it to my spouse.
When someone dies, probate courts honor legal title when deciding who gets what. Divorce courts do not. In divorce court, all property owned by either party is up for grabs in the property division. It doesn’t matter if it’s titled jointly or individually. The divorce court can change title in order to achieve an equitable division. The only way to protect or exclude property is with a valid premarital or post-nuptial agreement.
Myth 9 – The Court always divides the property 50/50
Indiana law has a presumption that an equal division is just and reasonable. But that presumption can be rebutted. Factors that can justify deviation from 50/50 include premarital property, gifts, inheritances, and earning abilities of the parties.
Myth 10 – Hiring a lawyer will turn my divorce a battle.
If you hire the right lawyer, it should make your divorce smoother and easier. Getting divorced can put you on an emotional roller coast where it’s hard to make wise decisions. Your attorney serves as your voice of calm reason. When you feel too sad, mad, or frustrated to work things out, your attorney can step in and help you make plans for the future, decide what’s worth fighting for, and where to compromise. Lawyers settle the vast majority of their cases without going to trial.