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

One that Hammond family law attorneys sometimes see crop up is when one parent becomes involved with a new paramour, be it a boyfriend or girlfriend or a new legal spouse. It may be uncomfortable for the ex-spouse; beyond that, it could mean changes in the previously agreed-to parenting plan. That’s why it may be wise to avoid inviting new love interests to spend extensive time with one’s children until the developing relationship becomes more serious.

There have been a significant number of cases in which a parent will apply to limit the amount of exposure children have to their ex-spouse’s new boyfriend or girlfriend. In some cases, this desire arises out of legitimate concern, either a fear that the child will form too close an attachment too quickly, or a worry about the child’s safety due to the paramour’s history. In other instances, it’s simply done out of spite or jealousy. more

In either case, it can have a significant impact on the outcome of a child custody case. Take for example the recent case of Nolan v. Huff, before the Indiana Court of Appeals.

Here, according to court records, the parties were married in 2003 and have twins, born in 2010. Father filed for divorce in 2012. At some point during the divorce proceedings, the father began dating a woman, “Kim.” Soon after, Mother began dating Kim’s then-husband, “Tony.”

By the fall of 2013, both parties had worked successfully through mediation, and it was agreed by both sides that neither parent’s significant other would be left alone with the children without the parent being present. When the divorce was finalized, it was also determined that the mother’s boyfriend was not to live with the mother (with whom the children primarily resided) and Tony was not to be alone with the children. Father was given parenting time in excess of Indiana Parenting Time Guidelines.

Two months later, Mother filed a motion to relocate, seeking permission to move across the state to be closer to her parents and asking that her boyfriend be allowed to live with her. In response, Father opposed that motion and alleged the boyfriend was already living with her in violation of the decree.

At a hearing, the woman said the boyfriend stayed overnight at her home 3 or 4 nights a week, but it was not his legal residence. At that hearing, Kim also testified to the court that her still-husband had anger and violence issues and had raped her more than 20 times over the course of 18 months when she refused him sex. She also said he was violent with their own children.

The court ultimately granted Mother’s request to relocate, but found in her in contempt of court for allowing her boyfriend to live with her in violation of the order, citing her “blatant disregard” for it. The penalty for that was taken under advisement, but the court did award father more parenting time.

Mother appealed, arguing parenting time should not have changed, as neither party had requested it. The appeals court affirmed, noting that the mother impliedly consented to having custody considered when she petitioned the court to relocate, and the court was entitled to consider all matters before it.

This case reveals why parents must tread carefully when it comes to bringing a significant other into their lives in the midst of child custody disputes.

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

Additional Resources:

Nolan v. Huff, May 20, 2016, Indiana Court of Appeals

More Blog Entries:

Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Family Law Attorney 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

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

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

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

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

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