Many people facing a divorce are hyper-focused on the here and now. And sometimes, it really is best to take things one day at a time. handscompassion1.jpg

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.
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The issue of legality of same-sex marriage in America was settled recently with the U.S. Supreme Court decision in Obergefell v. Hodges.
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.
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After two people decide they no longer wish to be married, one of the key points of contention often becomes division of assets. Indiana, as in most states, seeks equitable distribution, or a distribution that is fair given the circumstances.
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.
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A recent attempt by an ex-wife to sue her former husband’s mistress for alienation of affection was thwarted by the fact that the contacts between husband and mistress did not occur frequently enough in the state of Mississippi for the state court to have jurisdiction. Primarily, the contacts occurred out-of-state, while husband was traveling as a pilot for a mail carrier. affair.jpg

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.
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When it comes to child support calculations in Indiana, state courts are given guidelines by which to adhere. These guidelines take into account a host of factors, ranging from employment, wages, computations for prior-born or subsequent-born children, costs for child health insurance and child health care, education expenses and other factors.
But Ind. Child Supp. G. 3(F)(2) is clear: If the trial court finds support provided under the guidelines isn’t reasonable, just or appropriate, the court can deviate from those guidelines and administer an amount deemed more appropriate.

In the recent Indiana Supreme Court case of Bogner v. Bogner, the court once again underscored this point, with the justices noting the guidelines are not to be taken as “immutable, black letter law.” Rather, there are some circumstances in which flexibility is required.

In this Indiana child support case, father and mother divorced in 2007, and at that time, shared a 2-year-old child together. The court originally ordered father to pay $162 weekly. The following year, father petitioned court for a modification of payments. At that time, it was agreed he would pay $135 a week. During this time, mother and father alternated years under which they could claim the child as a dependent on tax returns.
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One fact that is difficult for many divorcing couples to grasp is that just because something is ordered in family court does not mean third parties must adhere to it.
A common example is when a husband is absolved of making mortgage payments on a marital home in which he no longer resides. This may be forfeited in exchange for some other advantage in the divorce settlement. However, the bank is not required to adhere to this agreement – it’s solely between husband and wife. So if husband’s name is on the mortgage, he’s technically still responsible to pay that mortgage, even if he doesn’t live there and even if the family court says he isn’t obligated. If the wife stops paying those mortgage payments, the husband becomes responsible for the total amount, or else the property will go into foreclosure and his credit will be dragged through the mud too.

The only recourse he would have at that point would be to sue the wife for damages under their prior agreement.
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While most of us get married believing the union is going to weather life’s storms, the reality is those storms get the best of many of us.
Some of the major life changes that often precede divorce include:

  • Illness
  • Job changes
  • Having children
  • Living apart
  • Trauma
  • Becoming Empty-Nesters
  • Infidelity

Take for example the issue of illness. A recent study published in the Journal of Health and Social Behavior revealed marriages were 6 percent more likely to end in divorce when the wife was diagnosed with a serious illness, as compared to unions in which the wife remained healthy.
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Indiana law allows parents to seek modification of child support such that the other parent be responsible to pay a portion of the child’s post-secondary education expenses, even though the child is no longer legally a minor.
In the case of Ball State University v. Irons, before the Indiana Supreme Court, a mother was understandably compelled to act when the university in which her daughter had previously been enrolled refused to provide transcripts to her new school, Indian University Northwest – after the school refused to allow her to enroll without them. Ball State said it had the authority to withhold the transcripts until payment of a debt obligation had been fulfilled. The bill was supposed to be paid by the father under an earlier approved modification of child support.

The mother was pursuing legal action against the father to compel him to pay this outstanding bill, and requested to add Ball State University as a supplemental defendant so that she could demand the transcripts be turned over to the new school. She asserted this action was necessary because otherwise, she would not be able to obtain complete relief in her action against the father. She was seeking unpaid fees to the first university, but also payment of future college expenses. However, she’d be unable to state future college expenses if her daughter wasn’t enrolled – which she couldn’t do without transcripts being held by the first school for non-payment.
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If ever a father questions the paternity of a child, it may be best to address those suspicions early on.
Failure to do may result in a situation similar to what plaintiff in Stacy M. v. Jason M. faced in a family law dispute before the Nebraska Supreme Court.

In that case, a father suspected his youngest son with his wife was not his biological child, but did not raise the issue in subsequent divorce proceedings. Years later, he completed genetic testing that proved his suspicions, and sought to have the child support terminated. However, he did not wish to severe the relationship with the child. The court essentially determined there would be no legal way to accomplish such a request.
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Anytime a custodial parent wishes to relocate with a child – whether it’s across the street or across the country – the parent must first notify the court and obtained permission.
Further, non-custodial parents have several options with how to proceed, particularly if they fear the move could have a detrimental impact on the parent-child bond.

Indiana Code 31-17-2.2-1 requires custodial parents to file a Notice of Intent to Relocate with the court at least three months prior to moving. Once the notice is filed, the non-custodial parent has 60 days in which to file an Objection to Relocation with the court.
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