• 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

But it was no laughing matter.

The case came about because, as The Daily Mail reported, the man was still legally married to that woman, his long-estranged wife. The pair had never formally divorced. In Iowa – just like in Indiana – a woman’s husband is the presumed father if:

• He and his wife were married when the child was born;
• The child is born no later than 300 days after the marriage ends.

more

The father in that case spoke to the state agency, explained the situation and offered to take a paternity test. However, the state agency informed him it would not be so simple. His only option, she said, is to “de-establish” paternity. That means he’s got to hire and attorney and take the matter to court. And in the meantime, he’s going to be paying child support.

It may seem nonsensical, but the law was written to ensure that children would be protected. But of course, infidelity is a reality in many unions. And then of course, there are situations like this in which spouses are long-estranged.

This case makes a strong argument to avoid putting off divorce. Beyond this example, some reasons you may want to avoid a long-term separation:

• Lack of control over expenditure of marital assets;
• Ample opportunity to hide assets;
• Divorce settlement may ultimately be less if either of your financial circumstances change;
• Spouse could move out-of-state or out-of-country, complicating legal matters;
• Alimony laws in your state could change;
• If your spouse gets into trouble financially, you may be liable too.

And then, of course, there is the matter of future relationships and future children.

When it comes to paternity, there have been many Indiana child support cases in which men have been expected to pay for children who are biologically not their own because the law presumed they were the father.

Some examples of this include:

• Parents not married with no formal establishment of paternity, but father has been informally supporting child and holding child out as his or her own;
• Parents are married – or in the process of divorcing – but have not yet finalized that divorce;
• Parents are divorced and father is paying child support, but now has reason to believe the child is not biologically his own;
• Paternity has been established by means other than a formal DNA test and now father wants to challenge paternity with a formal test.

In the first scenario, the father generally won’t be ordered to pay unless a paternity test establishes he is the biological father. Otherwise, he wouldn’t be required to pay support unless he chose to do so.

In the other scenarios, the father may have to request a paternity test and after that, file a formal request to terminate the child support order and ask that the child not be considered a product of the marriage.

Keep in mind, though, courts generally will not overturn a finding of paternity after two years of being established, no matter what the circumstances.

If you have concerns about establishing paternity, de-establishing paternity or arranging for child support, contact our Gary, Indiana paternity attorneys.

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

Additional Resources:

Man protests law requiring him to pay child support for another man’s child, March 24, 2016, By Tribune Media Wire

More Blog Entries:

Betancourt v. Betancourt – Indiana Child Support Arrears Dispute, March 11, 2016, Gary Paternity 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

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

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

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