In re: Marriage of Honer - Valuation of Marital Assets

June 18, 2015

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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Nordness v. Faucheux - When Infidelity Destroys a Marriage

June 6, 2015

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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Bogner v. Bogner - Indiana Supreme Court Weighs Child Support Modification

May 30, 2015

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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Ryder v. Ryder - Divorce Agreements Must be Carefully Drafted

May 10, 2015

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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Indiana Divorce Often Stems From Major Life Challenges, Changes

April 20, 2015

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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Ball State University v. Irons - Parent Seeks Tuition Payment From Divorce Settlement

April 5, 2015

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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Stacy M. v. Jason M. - No Termination of Child Support Without Termination of Rights

March 20, 2015

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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Schrag v. Spear - Relocation of Custodial Parent Requires Strict Procedural Following

March 5, 2015

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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In re Marriage of Gust - Spousal Maintenance Amount, Duration, Weighed

February 15, 2015

Indiana law generally presumes following a divorce each spouse will work and support him or herself after the marriage has ended. However, there are some exceptions, and in these cases, spousal maintenance is granted.
Courts are more likely to grant temporary spousal maintenance during the interim period between when divorce is filed and when it becomes final. This is the provisional period, and temporary maintenance is rather common.

Less common is an award of spousal maintenance after a divorce. In order for the court to award spousal maintenance, the law requires certain criteria, as set forth in Indiana Code 31-15-7-2, to be met. Primarily, the court considers whether the receiving spouse is physically or mentally incapacitated to the extent his or her ability to self-support is materially affected. The court may also consider the spouse's lack of sufficient property to provide for his or her needs, the custody of an incapacitated child requiring him or her to forgo employment as well as the educational level, earning potential and the amount of time necessary to seek and acquire sufficient training/education to become self-sufficient.

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Vanderkam v. Vanderkam - Consideration of Retirement Benefits Key in Divorce

February 4, 2015

In many divorce cases, one of the primary considerations that must be made concerns retirement benefits - whether that be through a typical 401k or a pension or through federal Social Security benefits.
The Employee Retirement Income Security Act of 1974 (ERISA) is a federal statute that sets the minimum standards for most voluntarily-established health plans and pensions in private industry, and it's intended to protect those enrolled.

Under this law, many plans allow for a survivor annuity, meaning if the recipient of the retirement funds dies, the surviving spouse will continue to receive benefits under the plan.

Of course, the person designated as one's survivor at the time the plan is formed may not be the same person to whom you are married when you die. In the event of a divorce, litigants need to carefully consider the necessary steps to either preserve their access to this benefit or remove the other spouse as a named beneficiary. Many times, a simple declaration in a divorce settlement is not enough. What may be needed is a qualified domestic relations order (QDRO), and even then, there may be certain stipulations.

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George v. George - Divorcing an Abusive Spouse

January 20, 2015

While divorce certainly has its challenges, it's usually preferable to remaining in a union that isn't working.
However, when the element of abuse is involved, there are unique and important considerations that must be made before proceeding. It has been proven violent spouses are most prone to extreme acts when the victim is attempting to leave the relationship.

That's why in these circumstances, it's imperative to consult with a legal team that understands the situation and can help guide you safely through the process by putting you in touch with social service resources such as shelters, law enforcement and crisis counselors. Safety of our clients is a No. 1 priority. We work to help ensure that by requesting emergency orders of protection, emergency child custody hearings and other measures intended to keep you safe while you leave a toxic relationship.

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Pre- and Post-Nuptial Agreements Must Be "Just" and "Equitable" to be Valid

January 10, 2015

Both pre- and post-nuptial agreements have increasingly come into favor among many couples, particularly those who are waiting longer to marry (or are marrying later in life) or may have issues to resolve during the course of the union.
These are formal agreements that will be recognized by Indiana civil courts in the event of marriage dissolution - barring certain findings of impropriety at the time the agreements were signed.

For example, Indiana Code 31-11-3 addresses the enforceability of pre-nuptial agreements, stating the agreement isn't enforceable if one party did not execute the agreement voluntarily, it was unconscionable when executed, provisions modify or eliminate spousal maintenance or cause one party to suffer extreme hardship under circumstances not reasonably foreseeable at the time of the agreement.

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Indiana Appeals Court Affirms Loss of Parental Rights, Cite Drug Use

December 20, 2014

Indiana courts are rarely eager to terminate the rights of faltering biological parents, who often receive numerous opportunities to reform and provide a stable, loving environment.
Termination of parental rights is seen as a last resort option, allowing the child to be either formally adopted by a more stable third party or to be deemed a child in need of service, in order to secure access to public support and services.

Still, parents who face this kind of action must recognize that such decisions, when they are handed down, are final and may forever close the door on an opportunity to establish a relationship with that child. Once appeals are exhausted, there may be no further right of action.

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Higgins v. Cumber - Step-parent Rights Weighed by State High Court

December 10, 2014

Approximately one in three children will live at least some portion of their childhood with a stepparent, according to recent statistics. These are individuals who will play an important and lasting role in children's lives.
However, from a legal standpoint, stepparents - even residential stepparents - generally have fewer rights than even legal guardians or foster parents. Still, in situations where a stepparent voluntarily receives a stepchild into his or her family and treated the child as a family member, he or she could be considered in loco parentis, meaning he or she assumes an obligation to maintain and support the child.

But absent a formal adoption, a stepparent who later separates from the child's biological parent and then seeks to establish visitation will face an uphill battle. It is absolutely possible, particularly if the child lived with the stepparent and the relationship was long-term. However, it's not an automatic right. If a biological parent opposes, the matter will have to be addressed in family court.

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Carr-MacArthur v. Carr - On Mental Health and Child Custody

November 18, 2014

Mental illness does not carry the same stigma it did even just a few decades ago. This has brought many conditions to light that may have otherwise been hidden, and allowed for better treatment plans with greater family support.
However, in the course of dissolving a marriage or within a child custody dispute, the mental health of one parent or both is sometimes called into question. Often, one side will press for the introduction of evidence such as medical records or the testimony of one's psychotherapist in order to undercut that person's fitness as a parent or to gain some other advantage in the case.

It's important to understand confidential information and communication is protected by mental health professionals, but only to an extent. Particularly in child custody proceedings, the court will find it relative to determine whether one parent is "unstable" or "depressed." If the information may directly relate to the well-being of a child or the parent's ability to adequately care for the child, the court is likely to admit the information.

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