Thursday, July 12, 2007

Divorce: Starting the process

Everything starts with the Petition for Dissolution of Marriage. The Indiana Code (our statutes) sets out the requirements for the Petition.

The Indiana Supreme Court's Self-Service Legal Center has a Petition for children and without children.

Indiana law requires the Petition state one of four grounds for dissolving a marriage:
(1) Irretrievable breakdown of the marriage.
(2) The conviction of either of the parties, subsequent to the marriage, of a felony.
(3) Impotence, existing at the time of the marriage.
(4) Incurable insanity of either party for a period of at least two (2) years.
Generally, we all use irretrievable breakdown of the marriage in our petition.

One oddity involves the wife's former name and the Petition. As I read the statute, only a wife has the ability to request a name change:
31-15-2-18 Sec. 18. A woman who desires the restoration of her maiden or previous married name must set out the name she desires to be restored to her in her petition for dissolution as part of the relief sought. The court shall grant the name change upon entering the decree of dissolution.
The Petition and Summons go to the County Clerk for filing. If there are children or a request for a restraining order, a Notice of Hearing also goes along. The Notice of Hearing informs the other spouse of the date and time for the provisional hearing.

The County Clerk sends the Petition and Summons out to be served on the other party. There are three ways to get the Petition served: certified mail, personal service, or by publication. The Indiana Rules of Trial Procedure have rules on each type of service.

I think certified mail is pretty obvious. For personal service, the Sheriff or the court's bailiff serve the summons and Petition on the other party by giving it to them or just by leaving it in the door. If you look at your newspaper's legal classified section, you may see a summons by publication entry and that is what we call service by publication.

Of the three, the best method for service is personal service. The divorce cannot be final so long as the other party has not received a copy of the Petition.

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