At issue before the appellate court in Klimeck v. Klimeck was whether the trial court:

• Properly and reasonably divided the marital estate;
• Abused its discretion by ordering the husband to pay spousal maintenance to the wife;
• Abused its discretion by imposing a gag order on the husband with regard to the wife’s medical conditions and treatments.

Ultimately, the court affirmed in part, reversed in part, and remanded. more

Wife had not been employed outside the home since 2002, and their first child was born in 2004, followed by their second child in 2007. In 2006 and 2008, Husband inherited property from his parents in Germany. He sold and invested the proceeds in several German bank accounts. Throughout the marriage, the husband had made various deposits into those accounts, including money the family later used to finance visits to Germany.

Husband filed for divorce in 2014. Shortly before doing so, he made a number of large withdrawals from the couples’ joint bank accounts. Less than a month before filing his petition for Indiana divorce, the husband transferred $280,000 from a joint account into the children’s college savings accounts without his wife’s agreement. He also reportedly used marital assets to cover the family’s living expenses while the petition was pending, even though his salary was sufficient for this purpose. He incurred approximately $66,000 in capital gains taxes as a result.

The trial court ordered Husband to pay the taxes, but otherwise divided the marital estate equally, including those German accounts. The court also ordered Husband to make spousal maintenance payments to his wife until the end of 2015 and to refrain from any public mention of his wife’s medical conditions and/or treatments.

The husband appealed. He argued that the trial courts should have separated several of his German accounts from the marital estate, at least partially because they contained the value of the inherited properties he sold. The trial court had decided to split the accounts because both parties jointly decided how to invest the money in those accounts, Husband’s earnings from international employment was deposited in those accounts, money for family travel was spent from those accounts, and the money was included in recent joint tax filings. Other key facts of this case and its outcome include:

• The appellate justices declined to find that the court abused its discretion in equally dividing these assets.
• On the issue of requiring him to pay the capital gains taxes, the court noted the husband withdrew ten times the amount of money his wife did from those accounts before the divorce filing, and she did not have access to other sources of funds (i.e., income) that he did to cover living expenses while the petition was pending. The trial court had found that the husband needlessly liquidated marital assets and in the process necessitated his wife incurring attorney fees. The trial court had found Husband inappropriately disposed of marital assets, so requiring him to pay the $66,000 tax incurred was not unreasonable – even when it resulted in an uneven distribution of assets.
• On the issue of spousal support, the court found there was sufficient evidence to support the need for these payments, even despite Husband’s arguments that Wife hadn’t proven she was unable to work.
• On the issue of the so-called gag order, the court found no abuse of discretion.
• The one issue the appellate court took issue with was the erroneous two-time inclusion of the value of a single vehicle in the accounting of the marital estate, and the court ordered a correction for that.

As our Indiana divorce lawyers can explain, any time you are planning a divorce, it’s best to discuss your financial plans with an experienced attorney to avoid the kind of penalties this plaintiff incurred.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Klimeck v. Klimeck , Aug. 11, 2016, Indiana Court of Appeals

More Blog Entries:

Peterson v. Peterson – Failure to Pay Spousal Support, Aug. 28, 2016, Indiana Divorce Lawyer Blog

• Pay interest on his monthly payments to his wife, because he did not pay each in a lump sum;
• Be held in contempt for failure to obtain a life insurance policy naming his ex-spouse as the sole irrevocable beneficiary;
• Pay for her attorney fees in taking the matter to court.

The outcome has proven costly for the husband, and it illustrates the importance of ensuring you fully understand your obligations under each provision of the original Indiana divorce agreement. Failure to abide by any part of it could prove an expensive mistake. more

According to court records, Husband appealed the trial court’s order requiring him to pay interest on the unpaid balance of the settlement judgment he owed to his former wife, finding him in contempt for failure to obtain life insurance, and requiring him to pay his wife’s attorney’s fees for this contempt. Husband argued that he should only have to pay interest on the monthly payments if he failed to make them – not simply because he didn’t pay each in a lump sum. He further argued that the trial court failed to allow him due process by not informing him of the factual basis for the contempt allegation before the hearing, and also that there was not enough evidence he intentionally disobeyed the dissolution decree. He also insisted the court had wrongly denied him the opportunity to purge his contempt before it imposed the sanction.

The court rejected each of his arguments.

First, it looked at the judgment in which the husband was ordered to pay $272,000 to his wife, which he could do either in a lump sum or in 84 monthly installments of $3,238. The decree didn’t specifically indicate that Husband would have to pay interest if he chose the latter option, but it did say Wife was entitled to legal interest on any unpaid balance of the judgment. Husband argued this meant he only was required to pay interest if he didn’t keep up with those monthly payments. Wife argued this was unfair, as it would essentially mean her husband had an interest-free loan.

The court looked at the plain language of the agreement and sided with the wife, noting that “any unpaid balance” would include whatever he didn’t pay right away upfront.

Next, on the issue of contempt, the court analyzed the requirement of the husband to obtain a life insurance policy that named his ex-wife. The dissolution of their marriage occurred in October 2013. At that time, the husband was ordered to obtain a life insurance policy. However, the wife filed a motion in September 2015, arguing he still had not done this. Husband argued he should not be held in contempt for this because he had been trying to secure a life insurance policy, but had encountered great difficulty in the interim. He’d suffered several blood clots in the years leading up to the divorce. Following the third clot, which he suffered in August 2013, he was diagnosed with Deep Vein Thrombosis (DVT). When he tried to obtain life insurance, he spoke to a financial adviser in March 2014 who explained that this would be difficult, and that it would probably be at least two years before he was able to do so. Husband explained that he waited one year, until in July 2015, at which point the financial adviser indicated he could try again. He applied for one policy for $500,000, but was told it would cost $23,000 a year due to his medical condition. Because the rate was so high, he applied to another company, and that application was still pending at the time of this suit.

Husband argued that he’d still kept his ex-wife on the life insurance policy he’d held before, worth about $41,000, and he’d also named her the beneficiary of his net estate in his will – which he asserted was more than what he owed her.

However, the trial court ruled this was not sufficient to meet the terms of the agreement, and the appellate court affirmed both the finding of contempt and the requirement that Husband pay his ex-wife’s attorney fees.

Here again, communication with an experienced divorce lawyer at the outset of this agreement may have helped to avoid these financial headaches.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Laesch v. Laesch, Aug. 24, 2016, Indiana Court of Appeals

More Blog Entries:

Wallerstedt v. Wallerstedt – Relocation in Indiana Child Custody Case, July 25, 2016, Indiana Divorce Lawyer Blog

Indiana Code 31-15-7-2 specifies the circumstances under which spousal support can be awarded in Indiana. Most often, spousal support is awarded during the provisional period of the divorce, which is after the filing for divorce but prior to its finalization. However, it may also be awarded when:

One spouse lacks sufficient property to meet his or her needs and/or the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forego employment. The court will consider the educational level of each spouse, whether family responsibilities resulted in an interruption in education/training or employment, the earning capacity of each spouse, and the time and expense needed for the lesser-earning spouse to acquire sufficient education or training.more

Generally, spousal support in Indiana doesn’t exceed three years. However, once it has been ordered, the spouse who is required to pay it must abide by the court’s orders. Failure to do so will result in sanctions if he or she is found in contempt of court. In some cases, even inability to pay is no excuse.

An example recently came before the North Dakota Supreme Court in the case of Peterson v. Peterson. Although this was an out-of-state case, the same basic principles apply.

According to court records, Husband and Wife divorced in 1996, at which time the court ruled the husband was to pay the wife $1,500 each month in spousal support until the wife either remarried or died.

This went on for nearly two decades. Then, in early 2015, Wife petitioned the court to find her ex-husband in contempt for failing to pay spousal support. She alleged he had not done so since the fall of 2014. Husband responded with a petition for termination of spousal support obligations, or at least a modification. The trial court denied his request, found him in contempt, and ordered him to make back payments plus reimburse his ex-wife for attorney fees.

Husband appealed, arguing the district court erred. He argued that he should not be held in contempt because he was unable to make the support payments.

The state supreme court noted that when a party is unable to comply with a court order, it is not acceptable to simply ignore it until the person owed the support takes action for contempt. Even if a court’s order is erroneous, the parties are bound to it until it is reversed, modified, or set aside on appeal. If the husband in this case believed he was unable to pay the court-ordered support, the action he should have taken was to immediately move the court to abolish or reduce the court-ordered support based on a material change in circumstances. It is not acceptable, to simply stop making support payments, as Husband did here.

In this case, although it was disputed, the court did find that the husband had sufficient income – both direct and indirect – to continue to meet his court-ordered obligation.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Peterson v. Peterson, July 2016, North Dakota Supreme Court

More Blog Entries:

Luttrell v. Cucco – Same-Sex Couple Cohabitation Affects Spousal Support Payments, May 11, 2016, Gary Divorce Lawyer Blog

In the case of Seal v. Seal, the court ruled that the terms of the original distribution formula, which were agreed upon by all parties, were clear and unambiguous.

This case highlights what is an increasing point of contention in many Indiana divorce cases: that involving the apportioning of retirement funds. People are living longer, more often divorcing later in life, and these funds are what will determine each spouse’s quality of life in the golden years ahead. more

That’s why consultation with an experienced Hammond divorce attorney is so important. It’s imperative to ensure both parties receive a fair deal.

In Seal, according to court records, Husband and Wife were married in the summer of 1982, at which time Husband had been in the U.S. Air Force for seven years. He continued on in that career throughout the duration of their marriage, which ended in 2003, and up until his retirement in 2016 at age 59.

It was the wife who filed for dissolution of marriage. The divorce agreement they reached specified that Wife was supposed to receive exactly half of the benefits accrued under her husband’s Air Force pension up until the time of their divorce, while Husband was to receive any benefits accrued after that date.

Five years later, in 2008, Congress passed the National Defense Authorization Act of 2008, which lowered the retirement age for certain military reservists.

In 2009, the former couple met to modify their divorce agreement, touching on the subject of Husband’s military retirement pay. The modification was pursuant to the language of the statute, which laid out the details for when a former spouse was eligible to receive benefits and how much. The law required that the spouses be married at least 10 years, during which time one spouse must have served 10 years or more of active duty. In those cases, the non-military spouse would receive 50 percent of benefits accrued during the marriage.

Originally, Husband believed he was going to be retiring in 2017. However, because he served active duty in the years following his divorce, he was eligible to receive early retirement pay in 2016. This active duty was a prerequisite for his eligibility to collect early retirement. Because he worked this active duty after the divorce, he sought a stipulation order from the court about whether this early retirement pay was subject to division with his ex-wife.

The trial court ruled that if Husband applied for and received early retirement benefits, those benefits should be divvied up between Husband and Wife. The judge’s reasoning was that because nothing in the federal law required Husband to retire early, the early retirement was a voluntary act on his part.

The husband asked the trial court to reconsider, which it did, but it still concluded that Wife was entitled to 50 percent.

Husband appealed, and the Indiana Court of Appeals affirmed the lower court’s ruling. The court noted that the husband had agreed to a settlement in which there was no mention of limitations based on the timing of those benefits. If Husband had wanted the early retirement pay to be exempt from the formula used, he could have asked for that exemption in the original agreement. However, he had not done so.

Thus, the agreement was affirmed.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Seal v. Seal, July 29, 2016, Indiana Court of Appeals

More Blog Entries:

Wallerstedt v. Wallerstedt – Relocation in Indiana Child Custody Case, July 25, 2016, Indiana Divorce Agreement Lawyer Blog

But there are still some gray areas in our nation’s civil court systems with regard to these relationship. Take for example the recent case of Luttrell v. Cucco, weighed in on by the Virginia Supreme Court.

At its core, this case was a dispute over spousal support. As is common in many temporary spousal support agreements, a provision indicated that the support agreements were subject to termination in the event of “cohabitation,” as defined in Va. Code 20-109. The law states that maintenance and support of an ex-spouse may be discontinued upon cohabitation, remarriage, or death. Specifically, the law states that an ex-spouse who has been “habitually cohabitating with another person in a relationship analogous to a marriage for one year or more” is subject to termination of spousal support benefits. more

In this case, plaintiff (Husband) and defendant (Wife) were married in 1992. They later separated and Wife filed for divorce in 2007. Pursuant to the divorce agreement, Husband was to pay Wife monthly spousal support for a term of eight years. However, those payments could be terminated earlier if the wife died, remarried, or began cohabitating in a marriage-like relationship. The agreement also indicated that reasonable expenses incurred by a party in the successful enforcement of the agreement would have to be paid by the defaulting party.

In 2014, the husband hired a divorce lawyer and sought an amendment of the spousal support agreement, arguing that his ex-wife was engaged to be married and had been living continuously with her fiancée for at least a full year. He sought to terminate his spousal support agreement, and he also wanted his ex-wife to refund the equivalent of one year’s worth of payments.

At the hearing, Wife did not dispute the allegations, but she contended that because her relationship was with another woman, it wasn’t technically “cohabitating” under the terms of the law.

The circuit court decided that the right to marry was a separate question from the issue of cohabitation for spousal support purposes. Citing dissent in a prior Court of Appeals decision, the court ruled that only opposite-sex couples could cohabitate for purposes of spousal support termination. Several prior decisions had held that cohabitation be interpreted as a “man and a woman” and as “husband and wife.” Husband’s motion was denied and he was ordered to pay his ex-wife’s legal fees.

He appealed. The court of appeals affirmed, but the Virginia Supreme Court reversed.

Justices stated that they favored an interpretation that would further the statute’s purpose, rather than obstruct it. The court noted that the legislature, in wording the law, had not modified the word “person” with the phrase “of the opposite sex,” meaning it could include persons of either sex. The court further noted that although same-sex marriage wasn’t legal in Virginia in 1997 when the law was written, that was not relevant because the phrase “a relationship analogous to marriage” doesn’t equal “marriage.”

Therefore, a same-sex relationship could be considered “analogous to marriage,” regardless of whether the two could legally marry (which, of course, now they can). The lower court’s ruling was reversed.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Luttrell v. Cucco, April 28, 2016, Virginia Supreme Court

More Blog Entries:

Ahls v. Ahls – Appeals Court Favors Wife in Indiana Divorce Settlement, April 20, 2016, Indiana Divorce Lawyer Blog

This is a good example of why it’s important to carefully review retirement accounts when determining a divorce settlement.

According to court records, husband and wife married in 1993 and had one child together. After 20 years of marriage, wife filed a petition for divorce.more

At that time, the child was leaving for college and was considered emancipated, so there was no need to work out a child custody or support arrangement.

Among the marital assets that needed divvied up were three vested retirement accounts: A Military pension, a Civil Service Pension and a Thrift Savings Plan. The two parties presented expert witnesses that offered conflicting valuations of those accounts.

According to the husband’s expert, the military pension was valued at $265,500, the thrift pension was valued at $311,200 and the civil pension was valued at $290,000.

Both sides did agree that 62 percent of the civil and thrift accounts were earned during the marriage and 36 percent of the military pension was earned during the marriage. The rest of those accounts were earned by the husband before the couple married, and thus they were set aside and not considered marital assets for consideration in the Indiana divorce settlement.

The court adopted the husband’s calculation of the account values, awarding wife 15.5 percent of each the thrift and civil accounts and 9 percent of the military pension account. Husband was ordered to pay $52,000 on top of that as part of an equalization judgment. The order did not mention survivor benefits, should the husband die first. The court also ordered both parties to pay their own respective attorney fees.

Wife appealed, arguing the calculations of her share of the retirement accounts were incorrect and also challenging the decisions not to award her survivor benefits or attorney fees.

Specifically, wife contended the court improperly applied the coverture fraction. This is a formula that a trial court can use to distribute retirement plan benefits or pensions from the earning spouse to the non-earning spouse. This method involves taking the value of the retirement account and multiplying it by a fraction (based on the period of time during which the marriage lasted).

The problem was the coverture fraction method was applied incorrectly, she argued – and the Indiana Court of Appeals agreed.

For example, with regard to the civil and thrift plans, where 62 percent of the plans were considered marital assets. By dividing this 50/50, as the courts had decided to do, the wife should have received 31 percent – not 15.5 percent. The court had in effect divided the amount twice, instead of just once. Under the court’s calculation, she was awarded just one-fourth of the two-thirds that had accrued during the marriage, when in fact, she was entitled to one-half of the two-thirds.

The same issue was raised with regard to the military pension, of which she was entitled to 18 percent – not 9 percent.

Ultimately, that means wife was entitled to $116,000 more than what trial court awarded to her.

However, with regard to attorney fees and survivor benefits, the appeals court found the trial court acted appropriately within its discretion.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Ahls v. Ahls, March 11, 2016, Indiana Court of Appeals

More Blog Entries:

Carr v. Carr – Survivor Benefit is Marital Asset, Indiana Appeals Court Rules, Feb. 20, 2016, Hammond Divorce Lawyer Blog

That was the ruling handed down by the Indiana Court of Appeals in the recent case of In Re: the Marriage of Carr v. Carr.

This was a couple who had been married for 16 years and had two children together when the husband sought a divorce. For 14 years before the pair were married, husband had worked in the military, and his service continued while the pair were together. Prior to their marriage, the husband had begun building up his pension. During the marriage, that pension grew. He’d also earned a pension prior to the marriage from a private company.more

While the two were married, both made substantial contributions to the acquisition of marital assets, though husband’s contributions were more financial while wife’s were more non-economic.

Husband filed for divorce in Indiana while he was deployed overseas. He expected when he returned to leave the military and find a job that paid less, but his earning capacity still far outpaced his soon-to-be-ex-wife’s.

The pair agreed on most issues – including the parenting time schedule with the kids. However, they could not agree over the value and treatment of husband’s civilian and military pensions. An expert was hired to calculate the value of these assets. He determined the survivor benefit wife would earn if husband died was $2,750 a month or $226,500 total. The total amount that could be earned under the pension was $1.2 million.

Wife countered this by pointing out that her non-economic contributions to the marriage allowed her husband to stay in the military and if he’d not been able to do so, he would have no pension. She stated she counseled him to maximize his retirement benefits, and therefore she should be entitled to half of the $1.2 million.

Wife received half of the total military pension’s present value, which was $315,500.

There was dispute between parties about whether this should be considered a “marital asset.” If it was, wife would be entitled to fewer other assets in an equitable distribution arrangement. Wife pointed out – and trial court agreed – there was no guarantee she would ever collect survivors’ benefits because she would have to live longer than him to do so. Accordingly, the court didn’t count the survivor benefits as a marital asset. Ultimately, she was awarded more than $800,000 of a total marital estate of more than $1.3 million.

Husband appealed, arguing the survivor benefit plan should have been counted as a marital asset.

The appellate court agreed. Justices noted that actually, this benefit to the other spouse because it creates an incentive for the pension-earner to secure a survivor benefit plan in the first place.

The court ordered that the case be remanded to the trial court to either justify the 65/35 split of assets, or to conform it to the 60/40 split that resulted when the survivor benefit plan was added to the marital pot for distribution of assets.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

In Re: the Marriage of Carr v. Carr , Jan. 27, 2016, Indiana Court of Appeals

More Blog Entries:

Gertiser v. Gertiser – Indiana Supreme Court Weighs Spousal Maintenance, Dec. 20, 2016, Hammond Divorce Lawyer Blog

It’s not an uncommon scenario, as many entrepreneurs toil long hours building the company, and the marriage can suffer. It’s typical of younger couples to marry with no prenuptial agreement. What starts as a $50,000 venture can expand to a $10 million enterprise by the time the marriage dissolves – and by that time, the spouse has a stake in the business growth.

Of course, every scenario is different, but preservation of the business is a top priority for many owners. more

Our divorce lawyers in Gary know one of the best ways is to prepare for this possibility far in advance. Few people get married thinking it’s not going to last, but protecting the firm’s interests should be considered when legally formalizing a relationship.

Some preventative measures you can take include:

• Signing a prenuptial agreement. Business owners who had a company before they married should ensure the firm is designated as separate property.
• Securing a postnuptial agreement. This is a financial agreement signed after the wedding. While many judges look at postnupital agreements with a critical eye, they are usually binding. It can help to define the business as separate property, and it’s good to have one in place years before a divorce is initiated.
• Putting the business in a trust. If the entrepreneur no longer personally owns it, it can no longer be considered a marital asset. This also shields the value of the firm’s growth.
• Establishing a buy-sell agreement. This agreement will spell out what will happen should one of the owner’s status change (as would be the situation in a divorce). It will help to minimize the spouse’s right to acquire any ownership of the company, or it might give the other partners the right to purchase interest awarded to the ex-spouse at a preset, low price.

But what if it’s too late for all that? Again, it will depend on your individual situation, but there are some effective strategies that work well for a broad base of business owners. These include:

• Keep good records and make sure to separate the family finances from those of the business. The more entangled your personal assets are with your business assets, the tougher it’s going to be to argue the business isn’t a marital asset.
• Pay yourself well. Some business owners will pay themselves less in the short term thinking they will eventually sell the company and use those proceeds for retirement. But if your spouse then becomes entitled to a share of the company, they’ll get more because you didn’t take out as much annually.
• Remove your spouse from the business. If that means firing him or her, do so as early as possible, as this will weaken the claim that he or she helped build the company and should therefore be allowed to profit from its growth.
• Obtain a fair valuation. Using a court-appointed, neutral professional to determine the value of the company before you agree to anything.

If you have additional questions or concerns about divorce and the impact on your business, contact us today.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

What to Know if You Own a Business and are Contemplating Divorce, Jan. 27, 2016, By Harvey Wallace, St. Louis BizTalk

More Blog Entries:

Divorcing Parents of Children With Disabilities Face Unique Challenges, Dec. 10, 2016, Gary Divorce Attorney Blog

That’s why January has a reputation for being “divorce month.”

But as heartbreaking – or freeing – as the process may be, one of the first things we recommend to those on both sides of the aisle: Companionship.

Not with each other, of course, but with an experienced divorce attorney. You’re going to need a legal, tax and investment professional to help guide you through this change so you don’t end up on shaky financial ground. The goal is to keep things as amicable as possible and as equitable as possible. In cases where relations are contentious or strained, it’s especially important to have a third-party to help mediate the conversation and goals.more

Some ways in which you can help to reduce cost and lessen the financial and emotional burdens:

Keep it civil. For one thing, if you have children, this is best for their emotional stability through what is already a confusing and tumultuous time for them. But beyond that, if you start squabbling over every minor asset and issue, you’re going to spend time and money fighting over details that may not matter in a few short years.

Recognize what is no longer “on paper.” Even just a few years ago, a significant portion of financial records were “on paper.” That’s no longer the case. Most financial information is now in a digital format, usually on computer hard drives, smart phones and other digital devices. There are many laws protecting what can and can’t be accessed and how. You may be entitled to information your spouse is holding, but you have to be careful how you collect it.

Review your taxes. Nobody likes looking at taxes, and many people’s eyes glaze over at the thought. However, it’s worth it to become familiar with your joint tax return. This usually contains important information about partnerships, investments and other sources of income.

Educate yourself. If you have generally been the one to avoid dealing with money and investment issues, the time to get educated about these issues is now. It’s fairly common for spouses to hide investments from one another, and this is where working with a divorce lawyer can help you uncover those assets – to which you are entitled a portion.

Re-examine your financial needs. Your plans for savings, spending and investment may change significantly once you are single. For example, all that money you were setting aside for your child’s college fund? You may need to revisit that.

Adult children and real estate. Increasingly, older couples are divorcing and wrangling with questions about how to divvy up real estate like beach houses or downtown condos, because they want their children and grandchildren to be able to enjoy them. But these properties are almost always more hassle than they are worth, once you factor in upkeep, scheduling conflicts, etc. It’s often best to sell the property and divide the proceeds among the kids.

The bottom line is that each case is going to be different. Our legal team can help set you on the right financial path as you embark on this next leg of the journey.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

How to Handle Investments When You Divorce, Nov. 16, 2015, By Lou Carlozo, U.S. News & World Report

More Blog Entries:

Gertiser v. Gertiser – Indiana Supreme Court Weighs Spousal Maintenance, Dec. 20, 2015, Hammond Divorce Attorney Blog

Typically, this is offered when one spouse earns significantly more than the other. Usually, this type of support is temporary, though a judge may determine it should be indefinite if the lesser earning spouse is disabled or unable to return to work for other reasons.

Whether spousal maintenance is permanent or temporary, parties may request modification or even termination when there is a material change in circumstance, such as remarriage. However, the 1994 Indiana Court of Appeals case of Roberts v. Roberts was clear in establishing the fact that spousal maintenance is not automatically terminated upon remarriage. There still needs to be proof presented by the moving party that the marriage means a significant change in the former spouse’s ability to support himself or herself.

This issue was weighed against recently by the Indiana Supreme Court in Gertiser v. Gertiser. more

According to court records, parties involved were married for 25 years before divorcing in 2007. At the time of their divorce, wife took home approximately $11,000 a year in Social Security Disability payments and meager earnings doing work-at-home medical transcription. Husband, meanwhile, earned $145,000 annually.

Wife suffered from disabilities related to her sight, and since 1998, her eyesight degenerated to the point that present day, she is effectively blind. She can do some reading with materials an inch from her face, but cannot drive and her ability to support herself is materially affected. Family court ordered husband to pay wife $1,180 a month in support.

In the years following that decision, both husband and wife remarried. Upon learning of wife’s remarriage, husband petitioned trial court for termination of spousal benefits, arguing the marriage created a substantial and continuing change in her financial conditions that made any further support by him unreasonable. He asserted her husband brought substantial assets into the marriage and had a duty to support her. He also asserted his ex-wife’s occupational skills had been advanced with assistive technology.

Trial court, however, refused this request. Judge stated the original divorce settlement with spousal maintenance was not predicated on wife being totally incapable of working, and neither her disability nor potential earning power had since improved. Also, while ex-husband’s income had increased, ex-wife’s minimal income was unchanged. Since her remarriage, the only real thing that changed was that she no longer needed to borrow money from her father to pay her monthly mortgage.

Further, the court stated that remarriage alone isn’t enough to establish a substantial change in circumstances. Trial court denied the request and ordered ex-husband to pay ex-wife’s $7,000 in attorney’s fees.

The Indiana Court of Appeals, however, reversed, finding the marriage to a man with significant means amounts to a substantial change in ex-wife’s ability to support herself. The court also reversed the award of attorney’s fees, finding there was no disparity in resources between the two parties and in fact, ex-wife had more resources available to pay attorney’s fees than the ex-husband did.

However, the Indiana Supreme Court disagreed and affirmed the trial court’s decision. While the new husband did technically earn more than ex-husband and brought substantial resources to the marriage, much of that money was used for supporting his ex-wife, paying child support and paying college tuition for his older children.

The court took care to note ex-husband was not requesting a mere modification of the original agreement, but termination of it altogether. In weighing all relevant factors, the court noted any change in ex-wife’s circumstances was not of a magnitude that it was unreasonable to leave the maintenance order in place.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Gertiser v. Gertiser, Nov. 10, 2015, Indiana Supreme Court

More Blog Entries:

Carmer v. Carmer – Prenuptial Agreements, Personal Injury Annuities and Property Division, Nov. 20, 2015, Indiana Divorce Lawyer Blog

Researchers analyzed a longitudinal study of more than 10,000 people – and some of their siblings – beginning in 1957. From this group, study authors identified 190 parents of biological children with developmental disabilities, as compared to 7,250 parents of children without disabilities. What they discovered was that the rate of divorce was about the same for both groups – 1 in 5. However, for parents of children with no developmental issues, risks of divorce were lowest with just one child, and increased with each subsequent child. This was not true though for parents of children with disabilities.

What this suggests is that other children may provide an important support and coping system in caring for a developmentally disabled child, researchers say. more

However, there have been previous studies to suggest divorce rates are higher for parents of older children and adolescents with specific conditions, like autism. Researchers at the University of Wisconsin-Madison found that parents of children with autism had a 24 percent chance of divorcing, compared to other parents, who faced a 14 percent chance of divorce.

Many times, parents of special needs children face intense daily demands, and the marital relationship isn’t the primary focus. That can have long-term implications.

In these situations, the decisions that must be made and the specifics of the Indiana divorce agreement can be more complex because it must take into account the needs and responsibilities for that child. Courts will look closely at the best interests of the child. There is no singular definition to that term, as it’s taken on a case-by-case basis.

Depending on the nature and scope of the disability, the American Bar Association has identified issues that may need to be addressed to ensure the child’s needs and best interests are met and advanced include:

• Visitation arrangements
• Educational decision-making
• Transition between homes
• Medical and health care needs
• Therapy and support services needs
• Childcare arrangements and costs
• Health insurance coverage

Occasionally, it happens that both parents agree on these issues, and all that’s necessary is for the court to formalize that agreement. However, in many cases, parents may disagree on the right approach or the amount of parenting time or the level of involvement in critical education and health care decisions.

It’s important that the final divorce decree be clear with regard to things like how decisions will be shared and how parents will resolve issues when they come to an impasse. This will help to ensure that necessary services to the child won’t be delayed any longer than necessary.

As the children get older, parents should have some outline of how they plan to work together to explore further education, training, employment, independent living and other goals. Children with special needs need both of their parents just as much after the divorce. Working out a plan that is flexible but clear is important.

In cases where disabilities are severe, parents may need to discuss elements such as estate planning, Social Security benefits for the child and all available health benefit resources.

For many of these families, co-parenting will be a lifelong endeavor. Both parents should ensure they are adequately represented.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

The Relative Risk of Divorce in Parents of Children With Developmental Disabilities: Impacts of Lifelong Parenting, November 2015, American Association on Intellectual and Developmental Disabilities

More Blog Entries:

Carmer v. Carmer – Prenuptial Agreements, Personal Injury Annuities and Property Division, Nov. 20, 2015, Hammond Divorce Attorney Blog

The case of Carmer v. Carmer, recently before the Indiana Court of Appeals, is one such example. This was a case in which a couple married for more than 20 years was separating after purchasing two homes together, having three children and in the midst of preparing to adopt two more. There was a premarital agreement on the table, but there was dispute about how it should be interpreted. There was also contention as to whether husband’s monthly annuities – received as compensation stemming from a personal injury lawsuit – should be factored into the child support schedule.

Just as every marriage is different, so too is every divorce and every divorce agreement. It’s imperative throughout the process to have an experienced divorce attorney advocating on your behalf and for the best interests of your children.more

In the Carmer case, according to court records, the couple was married in 1994. Six years prior to the marriage, husband was severely injured in an auto accident, during which he suffered a traumatic brain injury. He now walks with a limp and can’t use one of his arms. He receives $6,500 a month in annuities, plus periodic lump sum payments, and works as a greeter at a large chain store earning about $450 a week.

Wife was not employed during marriage, but stayed home to raise their children, the oldest of which is emancipated. The two were also raising two foster children and they had planned to adopt them, but the husband stated he no longer wanted to adopt after filing for divorce. The children were removed from the home, which wife was solely responsible for maintaining after husband moved out, due to unsanitary conditions and pet waste. The wife participated in protective services programs and is still trying to adopt.

Based on the prenuptial agreement, wife was to retain her separate property, half of all joint property and $70,000 lump sum payment if the marriage lasted longer than 14 years (which it did). Parties owned two homes and several vehicles, but they also had a fair amount of debt. Wife, who managed the family’s finances, admitted they lived beyond their means.

Trial court decided husband’s child support payments should be $150 a month, based on his income as a greeter. Court did not count the money he received in annuities, citing the Structured Settlement Protection Act and IRS code. The court further determined that while wife was to receive $70,000, that amount could be reduced by the amount she took from the husband’s annuity to pay for legal representation during the adoption process after the children were removed from her care due to neglect. This was deemed a “dissipation of marital assets.” Wife was also deemed responsible for the dissipation of marital assets caused by loss of property value to the marital home due to failure to clean the pet waste.

The court affirmed in part with regard to the dissipation of marital assets and the fact that wife was responsible to cover the cost of her attorney’s fees relative to the adoption. However, appeals court ruled trial court erred in failing to include husband’s monthly annuity in the child support payments. The idea is that children are supposed to live as closely as possible to the lifestyle they would have had if the family had been left intact. Those annuity payments were used to support the family, and thus, the court ruled, they could be used to continue support of the children.

These kinds of disputes are not unique to this case, and results can vary depending on circumstances. By hiring an experienced family law attorney, you ensure your rights and interests are protected.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Carmer v. Carmer, Oct. 30, 2015, Indiana Court of Appeals

More Blog Entries:

Nelson v. Nelson – Challenge of Child Custody Order, Oct. 2, 2015, Gary Divorce Lawyer Blog

Marital property is that which is acquired during marriage, while separate property is what a spouse owns prior to marriage or acquires by gift or inheritance during the marriage. Even so, a judge has the discretion to divide the couple’s property in any way that seems fair, regardless of when it was acquired or who actually owns it. Commingling happens when separate and marital property is mixed.

Factors that may be considered when dividing a couple’s property unequally would be:

• Economic situation of each spouse;
• Each spouse’s current earnings or earning potential;
• Conduct that resulted in dissipation or loss of property;
• Each spouse’s contributions to property acquisition or income.

more

In the recent case of Dant v. Dant before the Indiana Court of Appeals, division of property was at issue. Wife appealed trial court’s award of 69 percent of net marital estate to husband, while granting her just 31 percent. Trial court stated that when it excluded assets husband had prior to marriage, the division was approximately 53 percent to him and 47 percent to her.

Although wife presented much evidence refuting the findings of the trial court, the appeals court noted it could not reweigh or consider new evidence. It could only review for abuse of discretion, and it found none.

According to court records, the pair were married in 1991 and filed for Indiana divorce in 2014. Prior to marriage, husband worked as a sheriff’s deputy and, from 2003 through 2010, served as a local elected sheriff. During this time, he earned about $85,000 annually. However, after he was not re-elected, his salary dropped to $32,000 and later to $28,000 while serving as a patrol deputy. That was still his occupation/pay grade at the time of the divorce.

Wife worked for a large auto manufacturing firm, and has consistently earned about $100,000 annually since 1992.

Husband had a pension plan valued at $1.1 million, and he was drawing $5,000 a month from it at the time of divorce. He also had other retirement accounts valued at a total $119,000. Wife’s retirement plan was valued at a total of $410,000. Additionally, the pair owned four parcels of rel estate, including the marital residence.

In dividing the property, the court awarded wife the marital property and one other, while awarding husband the two remaining. The ultimate division was unequal, but that doesn’t necessarily mean it was unfair.

It’s important for those in the midst of a divorce to make sure they have adequate legal representation because it’s difficult to have such decisions reversed at the appellate level. The appeals court has held that division of marital property is within the sound discretion of the trial court, which means the only way to reverse is for abuse of discretion. This occurs when:

• Decision was clearly against logic and effect of the facts and circumstances;
• Trial court misinterpreted the law
• Decision discharged evidence of factors listed in controlling statutes.

Even when there are reasonable inferences and facts that could lead to a different conclusion, the appellate court isn’t going to substitute its judgment for that of the trial court. There is a strong presumption faced by the appellant that trial court complied with statute. Even in cases where one or more findings is clearly erroneous, the appeals court can affirm if the judgment is supported by other findings or evidence on record.

Here, court acknowledged wife’s monetary and non-monetary contributions to the marriage, but there is no legal authority that says the court had to assume those contributions were expressly for the husband’s benefit. Further, the court did not find an abuse of discretion regarding trial court’s award of two properties to the husband, even in light of wife’s ample evidence that one of those properties was purchased by the couple during the marriage. Appeals court declined to reweigh the evidence.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Dant v. Dant , Oct. 30, 2015, Indiana Court of Appeals

More Blog Entries:

Stekr v. Beecham – Deviation from Child Support Guidelines, Oct. 25, 2015, Hammond Divorce Lawyer Blog

There is a legal presumption under Indiana law that property will be divided equally (50/50). However, parties can overcome that presumption by rebutting it with evidence to show why there should be a deviation. The goal isn’t always totally equal division, but rather equitable (fair) division in light of the circumstances.

Division of property is often one of the most contentious aspects of any divorce, and it’s one that often makes it to the appellate courts when one or both parties disagree with trial judge’s ruling. Such was the case in Carie v. Carie, recently before the Indiana Court of Appeals. more

This was an Indiana divorce case involving a couple with one child. However, all issues related to child custody and child support were resolved. Disagreements were primarily regarding whether trial court abused discretion by failing to include marital liabilities in the marital pot and whether the court abused discretion in the valuation of certain assets.

According to court records, husband purchased a home in 2004, before he began dating his future wife. Wife moved in about four years later, they had a child together the following year and the year after that, they were married.

During their time together, wife decorated the home, made several home improvements, replaced the flooring, repainted the kitchen cabinets, landscaped and hung shutters. Throughout this time, it was husband who paid the mortgage on the $100,000 home.

By the time they separated in the spring of 2013, the remaining balance on the mortgage was $79,000.

Prior to the marriage – but while the pair were living together – husband installed a new roof and a new pole barn. The latter cost $20,000, for which he took out a withdrawal against his 401K. There were later tax consequences when his employer shut down and the withdrawal was converted to a loan.

There were two vehicles purchased during the marriage, and those vehicles were later traded in for a smaller purchase after separation. Husband bought an ATV as well during marriage, and still owed $7,600 on it at time of separation.

Both parties had retirement accounts.

In the course of dividing marital property, trial court assigned husband with the fair market value of the vehicles and also determined the home – which he was allowed to keep – had appreciated in value by $30,000 during the marriage.

Husband later appealed on both issues. First, he said the vehicle valuations were improper because they failed to take into account the actual amount owed. Rather, the valuation was the Blue Book value. Appeals court affirmed, finding husband failed to present any evidence as to his remaining balance on those vehicles.

With regard to the appreciation of the home value, the appellate panel found based on the evidence presented, trial court made a decision on this point that was within the range of evidence and did not constitute an abuse of discretion.

Arguing things like valuation and what should be included in the “marital pot” is often more complex than most people realize. Consulting with an experienced divorce attorney in Hammond will help ensure no critical evidence that could help your case is excluded.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Carie v. Carie, Aug. 11, 2015, Indiana Court of Appeals

More Blog Entries:

In re: Marriage of Honer – Valuation of Marital Assets, June 18, 2015, Northwest Indiana Divorce Lawyer Blog

Officials were careful to caution that the appearance of those emails doesn’t necessarily mean anyone signed up for the service using their work email, but an investigation was being launched nonetheless. It’s not so much a moral issue, they say, as a potential violation of government email use policy.

But whether having an account tied to the site that encourages affairs causes workers trouble with their employer, it may not have a direct effect on one’s divorce. That’s because Indiana is a no-fault state when it comes to divorce.more

What that means is the reasons for one’s divorce – even if they are valid, like adultery – are not considered by the court with regard to division of assets, division of debts or child custody or parenting time.

However, this does not mean an extramarital affair is never relevant to a Gary divorce proceeding. What would be necessary to show is that the affair in some way negatively affected joint finances, debt situation or the emotional well-being of children.

Our Indiana divorce lawyers would first start with the issue of dissipation. In any divorce case in Indiana, there is the presumption that all liabilities and assets are going to be equitably divided. That presumption can be rebutted in a number of ways. For example, if one party makes significantly more income than another who stayed home to care for children, the stay-at-home parent may be entitled to a larger share of assets. Now, let’s say a cheating spouse used marital assets on an affair partner – or trying to obtain an affair partner (say, though Ashley Madison). Any finding of moneys spent for these purposes could be used as grounds to deviate from even division.

In cases involving minor children, we might analyze whether infidelity might be used to our advantage in court. It’s important to note courts do not tie a person’s fitness as a parent with his or her degree of faithfulness in a marriage. However, if the cheating spouse used poor judgment in introducing the affair partner to the children or dating a person who poses a clear risk to the children – those elements could be weighed by the court in custody and parenting time determinations.

Interestingly, in the case of Ashley Madison, some officials have noted certain accounts may reflect attempts by some people to catch their spouses in an act of infidelity, rather than actually engage in it themselves.

It would be unwise to jump to conclusions about the email addresses listed. But those who have through this hack uncovered information about their spouse they deem troubling should discuss their concerns with an experienced divorce attorney who can help you explore your options. That might not necessarily mean divorce. Some couples confronted with this kind of revelation choose this turning point to enter into a post-marital agreement. This is an opportunity for spouses to rededicate themselves to the union, with the agreement going a long way toward showing the aggrieved spouse the other is serious about putting the past behind them.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Indiana agencies, cities probe worker email addresses linked to Ashley Madison site, Aug. 21, 2015, By Justin L. Mack, USA Today

More Blog Entries:

Negotiating Retirement Benefits in Indiana Divorce Agreement, July 20, 2015, Gary, Indiana Divorce Attorney Blog

These agreements encompass everything from child support and parenting time to division of property and spousal maintenance (also sometimes referred to as spousal support). These orders are final, and the only way they can be modified is through a request from the court for modification on the basis of a material change in circumstance.

In weighing recently a request for modification in Pohl v. Pohl, the Indiana Supreme Court noted the precedent for such action was established nearly 20 years ago in Voigt v. Voigt. The court recognized in that prohibition of modification of maintenance agreements may produce harsh results, but it is generally to be recognized unless the agreement so provides. more

In this case, the Pohl divorce agreement did provide for further modification of the court, as it included the phrase “subject to further order of the court” with regard to spousal support.

Although the trial court ruled the maintenance order could not be modified, the state supreme court reversed and remanded, based on a substantial and continuing change in circumstance.

According to court records, the parties involved were married in 1991. The had one child together, born in 1995.

Throughout the majority of their marriage, wife was the primary wage earner. Husband had suffered a back injury, for which he was ultimately awarded Social Security Disability Insurance benefits, which to this day continue to be his sole source of individual income.

The pair divorced in 2009, and in so doing, entered a divorce settlement agreement. This agreement did not provide for spousal maintenance, something those involved say was an oversight. A few months later, they added an addendum to the agreement which provided for $4,000 in monthly maintenance to be paid by wife to husband. This agreement provided this monthly maintenance would be paid each month “until further order of the court or agreement of the parties.”

The agreement was drafted by husband’s divorce lawyer, and wife chose not to retain one, despite having the ability to easily afford it. She said she wanted to be “fair” and also keep the peace for the sake of her son.

She later filed a motion seeking to reduce the obligation from $4,000 each month to $1,000 each month. She noted husband’s yearly SSDI payments increased from $5,000 annually to $22,000 annually before the first payment became due. Secondly, husband had moved in with his fiancee, who made $100,000 each year and paid the couple’s mortgage.

Wife also during that time increased her income, from about $130,000 when the divorce was finalized to about $230,000 after receiving an advanced degree.

Trial court denied request to modify, concluding the agreement was not intended to allow for modification of spousal support, and could only be modified if wife could show fraud, duress or mistake.

She appealed, but the appellate court affirmed.

However, the state supreme court reversed. Although modification generally would not be allowed in this case, the agreement expressly indicated it was modifiable by its own terms.

This case underscores the importance of hiring an experienced Hammond divorce lawyer prior to reaching a final divorce agreement.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Pohl v. Pohl, Sept. 9, 2014, Indiana Supreme Court

More Blog Entries: Nordness v. Faucheux – When Infidelity Destroys a Marriage, June 6, 2015, Hammond Divorce Attorney Blog

Your divorce attorney, on the other hand, should be looking at your long-term well-being. That means figuring out a plan for division of assets, debts and benefits to sustain you not just over the next several months, but over years and even decades.

Even if a couple is not near retirement age, benefits accrued during the marriage are subject to division and must be carefully considered, just as one would weigh houses and other real estate. In fact, retirement benefits may actually be the largest asset a couple has between them.

Putting off the issue of retirement benefits or refusing to address them can be a big mistake. It’s important to understand that while divorce in Indiana calls for equitable division of assets, that does not always mean equal. Further, these funds are not automatically split in a divorce. more Individuals need to protect themselves against losing retirement assets to which they are entitled because it could mean the difference between aging in comfort and struggling financially through the golden years.

If you and your spouse are handling your divorce through mediation, you should at least consider hiring a divorce lawyer to help advise you on key issues. Otherwise, you risk making uninformed decisions that could cost you much more than legal fees in the long run.

It’s imperative to learn as much as possible about benefits that accrued during the marriage. It can be very difficult if not impossible to return to court after the divorce agreement has been signed to request a modification for more benefits because you didn’t learn about assets until later. (If it was purposely concealed from you, that may be a separate issue.)

Although retirement benefits can be split straight down the middle, there may be other ways to handle it. For instance, if a couple has more than one retirement account between them, the court may seek to equalize them. So if the husband’s retirement account is worth $100,000 and the wife’s $60,000, the agreement might allow wife to retain all her benefits, plus receive $20,000 of the husband’s. That will mean both parties receive $80,000.

If a traditional pension plan is involved, it may be necessary to hire a pension actuary to ascertain total value of benefits.

You will want to carefully consider waiving the right to benefits in lieu of other property, like the house. This is a pretty common arrangement, but it’s not always the wisest choice. Owning a home might seem like the better deal, but many people find after a few years they are unable to afford the taxes, the mortgage or the upkeep. They could sell it, but there is no guarantee it will be worth the same, and the seller will probably incur a large capital gains tax.

Understand that if you do decide to request your soon-to-be-ex-spouse’s retirement benefits, you must obtain a qualified domestic relations order, also known as a QDRO. This is signed by the judge and submitted to the administrator of the plan. This is critical because if the plan administrator doesn’t have proper documentation of the legally-binding agreement, the agreement won’t be honored.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Splitting up retirement assets in a divorce, Sept. 13, 2013, Bankrate.com More Blog Entries: In re: Marriage of Honer – Valuation of Marital Assets, June 18, 2015, Indiana Divorce Lawyer Blog

The lead plaintiff, from Ohio, challenged a state ban on homosexual marriage on constitutional grounds. Indiana voters had previously passed a similar ban, but the law was overturned last year when a federal judge declared it unconstitutional. Still, the question remained open-ended in many other states – until now.

What it means for same-sex couples who choose to marry is that the union they form in Indiana will be recognized nationally wherever they go. It also means those couples will have the right to divorce anywhere too. more This had become a complex issue for many same-sex couples. After all, just because a state government sanctions a union doesn’t necessarily make it any more inherently stable than it otherwise might have been. Couples who married in a state that recognized their union and then moved to a state with a gay marriage ban found themselves in limbo. The state didn’t recognize their union as legitimate, so they couldn’t proceed with a formal divorce.

Because every state has some type of residency requirement before couples can file for divorce, it meant many couples had to upend their lives just to obtain a divorce. Otherwise, they were stuck in a quasi-married state.

Now, those types of questions should be largely resolved. “Gay marriage” will be considered just “marriage” and “gay divorce” simply “divorce.”

Although these relationships were formally recognized as legitimate in Indiana last year, the U.S. Supreme Court ruling still has an impact for gay and lesbian couples in this state.

For one thing, they will not have to worry about whether their relationships and their families are going to be recognized in another state if they have to move. It means they are free to marry anywhere and move anywhere.

Secondly, they also are relieved of worrying about whether their relationship could face additional legal challenges at the whim of voters or politicians.

The case in Indiana that opened the doors was Baskin v. Bogan. The lead plaintiffs in the case were a couple who married in Massachusetts 13 years earlier, but had moved to Indiana with their two small children. One of the women was fighting Stage IV ovarian cancer, and had thus far had more than 100 tumors removed surgically. The couple sought to secure an accurate death certificate reflecting her married status, as well as to ensure the surviving spouse could manage their joint assets and care for their children.

The case was rushed before the court under emergency circumstances, given the dying woman’s limited time. The U.S. Court of Appeals for the Seventh Circuit ruled the ban was unconstitutional, and the woman’s marriage should be recognized in Indiana. That paved the way for both marriages and divorces by same-sex couples in the Hoosier state.

Now, those unions will have no bounds.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Same-sex marriage ruling may inflame rift at Indiana statehouse, June 27, 2015, By Brian Eason, Indy Star More Blog Entries: Nordness v. Faucheux – When Infidelity Destroys a Marriage, June 6, 2015, Indiana Family Law Attorney Blog

But this is often a more complex process than it seems. Some assets can’t be simply cut down the middle, 50-50. In order for the distribution to be fair, marital assets must first be identified and then valuated.

For some elements, this can be straightforward. For example, the amount of money in a bank account can be clearly valuated. A retirement account or real property might be a bit more complicated, but will still generally come out to a fairly easily calculable figure. A business, however, is different. In order to properly evaluate a business, one must often analyze the history of the business, the company’s tangible assets, the earning capacity, the fair market value, good will and any other intangible value. more Typically, because of the complex nature of these CASES, Indiana divorce attorneys will recommend retaining the services of an accountant.

The recent California appellate court case of In re: Marriage of Honer was one such case in which an intense valuation was needed.

According to court records, at issue was the dissolution of a 27-year marriage that involved division of property and spousal support.

During the course of the couple’s long marriage, they bought and built up several grocery stores with an upscale, organic niche. Two of those remained primary marital assets at the time they split. The businesses were held by an S corporation, of which husband was CEO and wife was vice president. The husband managed the stores while the wife designed the logo and handled administrative tasks.

Husband took a salary of $260,000 annually, plus he earned $20,000 as a bank director. Wife did not take a salary, but was paid $6,500 monthly as director following the separation.

Husband was healthy and expected to run the stores for another six years or so before retiring and passing them on to his daughter and her husband. Wife, meanwhile, was not well. She’d been less involved with the store since the late 1990s, and was diagnosed with multiple sclerosis shortly before the separation. Her condition is expected to worsen over time.

They owned a 50-acrew ranch, a 3,100 square-foot home, with property valued at $1.85 million. They were also involved in real estate and were equal co-owners of that corporation.

After they were separated, husband stayed at the ranch while wife moved to Texas to care for her sick mother. She paid $3,800 monthly to rent a downtown apartment.

Divorce court tallied the couple’s total net worth at $6.6 million, and ultimately awarded husband $4.9 million after credits and charges and $1.75 million to wife, which included minor assets and distributions. Additionally, husband was ordered to pay wife an equalizing payment of $1.6 million, which meant in the end, husband would receive $3.3 million and wife would receive $3.3 million.

Wife sought to re-open the case for new evidence of certain companies, arguing the valuation hadn’t taken into account important information. Her forensic accountant argued she was due an additional $430,000.

However, the court denied her motion to reopen. She was, however, awarded attorneys’ fees, offset by a $40,000 sanction she was ordered to pay her ex for “conduct increasing the costs of litigation.”

Wife appealed, but the California appellate court affirmed, finding the valuation prior to the court’s distribution of assets was proper and no new trial was warranted.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: In re: Marriage of Honer, May 6, 2015, California Court of Appeals, First Appellate District, Division Four More Blog Entries:

Ryder v. Ryder – Divorce Agreements Must be Carefully Drafted, May 10, 2015, Indiana Divorce Lawyer Blog

The case of Nordness v. Faucheux, before the Mississippi Supreme Court, is what is referred to as “alienation of affection.”

Alienation of affection is a common law tort brought by a deserted spouse against a third party alleged to be responsible for the end of a marriage. It has been abolished in most jurisdictions, including Indiana. In Mississippi, however, it still remains a viable cause of action. more In this case, the court could not claim jurisdiction because the majority of the contact between husband and mistress occurred out-of-state. Husband and wife resided in Mississippi, but husband made frequent trips to Louisiana, where he met the “other woman.” Eventually, the wife discovered the affair and her husband reconciled with her. However, the affair continued until the mistress moved to North Carolina. Then several months later, husband flew to her home state, came to her workplace and declared his love. Their affair once again resumed, with contacts occurring all over the country – but never in Mississippi. Because there was not sufficient contact in the state where the claim was filed, the case was dismissed.

Despite the fact that alienation of affection claims are no longer allowable in Indiana, infidelity may still have some impact on an Indiana divorce, depending on the circumstances.

It’s important to note first that Indiana is a no-fault state when it comes to divorce. That means the reason why the two people are divorcing is not a primary consideration. So a cheating spouse need not be awarded any less solely on that fact.

However, there are some ways in which infidelity could become relevant. The first scenario is that of dissipation. In Indiana, there is a general presumption that all marital debts and assets are going to be split equitably. However, that presumption may be rebutted if one can show a cheating spouse used marital assets on the other person during the marriage. This could be considered dissipation. So for example, if an unfaithful wife spends money from the joint bank account she shares with her husband to make repeated flights to see a man with whom she’s having an affair, this could reduce the amount of assets to which the court may find she’s entitled.

Another area of divorce law in which infidelity may factor is child custody. In some cases, it may be deemed significant. The court will not automatically equate infidelity with being an unfit parent. However, the court may consider the cheating spouse’s judgment if, for example, the mistress was introduced to the children at some point or if the new boyfriend or girlfriend poses any danger to the children (i.e., alcohol, drugs, sex offender, etc.).

The cases in which infidelity is going to matter will be fact-specific. That’s why it’s important to consult with an experienced Highland divorce lawyer before deciding best how to proceed.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Nordness v. Faucheux, May 28, 2015, Mississippi Supreme Court More Blog Entries: Bogner v. Bogner – Indiana Supreme Court Weighs Child Support Modification, May 30, 2015, Highland Divorce Lawyer Blog