THE EVOLUTION OF INDIANA SAME SEX DIVORCE

Indiana family law changed forever when the ban on same-sex marriage was overturned recently. This affects not only the right to marry, but also all aspects of Indiana family law. It directly affects same sex divorce which affects custody and parenting time issues as well as the financial division. It can be presumed that there will be ripple effects on determination of same sex custody and parenting time under paternity actions.

Indiana is actually quite well prepared to assimilate and accommodate these changes. Indiana case law and statutes have been increasingly focused on the best interests of the children and increasingly moving away from traditional household sex-based roles and parental roles.

Here are three reasons why Indiana is well prepared for same-sex divorce:
​1.   Emphasis on best interests of the children. By looking at the best interests of the children and their relationships with the parents, courts are less reliant on traditional parental roles. The advent of same-sex marriage carries with it the potential of real analysis of parental roles and household roles. Indiana's movement over the past few years toward a child focused analysis diminishes the anticipated effects of the same-sex marriage ruling.
2.   Less reliance on traditional parental roles. Recent decisions by the Indiana Court of Appeals and Supreme Court rarely mention the “fatherly role” or “motherly role” in the upbringing of children. They discuss the children's relationship with each parent. There is little to no analysis of a father’s traditional role or a mother’s traditional role now.  Courts are increasingly looking at how this parent interacted with the children in this family. Indiana's continuing evolution therefore seems well suited to the new same-sex marriage landscape.
3.   Less reliance on traditional household roles. In the division of the marital estate as well as analysis of spousal maintenance, the Indiana courts do not presume that the husband is the breadwinner or that the wife is the homemaker. While courts may from time to time reference a spouse’s role as breadwinner or homemaker, it is within a discussion of the reality of that individual household not due to that spouse’s sex or gender. Maintenance analysis is strictly limited to the presence of an incapacity or the need for additional support to re-enter the workforce, with no distinction or presumption concerning a spouse’s gender.

Indiana’s courts therefore seem well placed to analyze the custody and financial issues of a divorce for a divorcing same sex couple.  While this change is still new and untested under Indiana law, there should not be significant differences on the custody and parenting time analysis for same-sex paternity cases.

Given this new and evolving landscape you are best served by a law firm or lawyer who is adaptable and not cemented to advocating only what will soon be archaic sex or family roles. This does not mean that these new changes will occur overnight.  But sooner rather than later, the changes on the horizon will be in your courtroom and affecting your case. 

Carter Legal Services LLC is well placed for this new landscape. I have practiced family law in multiple states for over 20 years.  I have not only seen and participated in this evolution but also can bring in the multiple points of view from the various states in which I have practiced, as well as keeping current on legal trends through numerous Indiana appeals. In addition my experience as a systems programmer allows me to develop a strategic plan for your situation regardless of the gender or parental roles of my client. Please use our CONTACT page to schedule an initial strategic consultation to analyze your situation and assist you in moving to the next phase of your life and your children's lives.