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

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