Author: Andrew Riedle

Indianapolis Divorce Attorney on Dividing Marital Property

Division of marital property is often one of the most hotly contested issues in divorces. This is especially true in high asset divorces. In each case, you must first determine what is marital property and then how it should be distributed between the parties.  Indiana law establishes rules for courts to apply in answering these difficult questions. It will be up to your divorce attorney to discover assets, evaluate them, and present your case to the court effectively so you can keep what you are entitled to.

What property is considered marital property?

Indiana divorces are controlled by the “single pot theory” of marital property. Under this view, all vested property owned by each person prior to the marriage and all property gained by each or both person(s) after the marriage has been finalized is considered marital property. For example, if an unmarried woman receives a 1969 Chevrolet Corvette for her sixteenth birthday from her grandpa and she keeps it throughout her later marriage, this car would be considered marital property upon divorce. Likewise, if a married man has $10,000 in a bank account under his name only it still would be considered marital property under the single pot theory.[1]

 

How will the court divide the marital property?

Once everything is thrown into the pot, the court will look to fairly divide the assets. In Indiana, courts begin under the presumption that a 50/50 division of assets is fair. However, Indiana law permits a court to divide marital property unevenly if a party shows that it would be inequitable or unfair to split it evenly. By law, the court can consider five factors in every case to determine what is a fair division of the marital pot.  These factors are:

 

  • the extent to which a party contributed to the acquisition of property including non-income producing means of acquisition;
  • the extent to which property was acquired by a party before the marriage or as a gift or bequest;
  • the economic circumstances of the parties giving due consideration to the favorability of permitting the custodial parent to live in the martial home;
  • the capability of the parties to earn income; and
  • the nature and extent of dissipation (spending habits) of martial property by the parties during the marriage.

 

It is important to have an understanding of single pot theory and asset distribution as you begin the divorce process.  Learning these concepts is the beginning of arriving at a fair settlement of your marital property.  The next step is to contact an attorney to help you understand the law, devise a strategy, and obtain fair settlement.  For a free consultation, call Andrew Riedle at the Riedle Law Firm by phone at (317)377-4435

[1] Keep in mind the foregoing illustrations are merely examples and do not constitute absolute outcomes of real world circumstances. They are used only to theoretically explain or illustrate the legal concept of “single pot” theory of martial property. It is advisable to seek the opinion of an attorney before any decisions are made.

Indianapolis Divorce Attorney-On the Effect of Social Security Disability Benefits (SSDI) on Child Support

Family Law clients have asked me: “Will my social security benefits be included when calculating how much child support I owe?”

For Social Security Disability Insurance (SSDI) payments, the answer is almost always yes.

Whenever a court determines child support it looks for the “Gross Income” of each parent.  Gross income is the actual before tax revenue from almost all sources including SSDI income.  So, if you are receiving SSDI payments the Court will factor that as gross income for child support purposes.[1]

However, you will also receive a credit for any SSDI payments made to the custodial parent as payee for the child.  Here is how the different payments are credited:

Custodial Parent: If you are the custodial parent, the SSDI income you receive as the payee for the child will be credited towards your part of the child support obligation.

Non-custodial Parent: If you are the noncustodial parent, the payments made for the benefit of the child from your SSDI will be included in your gross income, but you will receive a credit towards your weekly child support obligation in the amount of the SSDI payments to the child.  Any excess amount will be applied to any existing arrearage.  If there is no arrearage, the payments are considered a gratuity to the child.

Lump Sum Payments: Most SSDI applications take a long time to process and the government will give the person a lump sum payment when the application is finally approved in order to account for the payments that should have come while the payment was being processed.  Children of the disabled person are also sent a lump sum payment.  If there is an arrearage, the lump sum payment will be applied to that arrearage.  However, if the payment exceeds the arrearage or if there is no arrearage, the payment is treated as a gratuity or a gift to the children.  It will not be paid back to the noncustodial parent, and it will not be applied to future payments.

It is also important to note that payments are only credited to an arrearage if they are made to the custodial parent as the payee.  That means if they are made directly to a child who has turned 18 the noncustodial parent will not receive a credit towards his or her arrerage.

Finally, be aware that a child support order will not change unless it is approved by the court.  So, if you are a parent and your child is receiving SSDI payments you have to file a motion for the court to apply the SSDI payments to your obligation before they will be counted as a credit.

[1] There is an exception for prior born children receiving survivor benefits.  If you are a parent who has a child with a person who has died and the child receives survivor benefits, those benefits are not included as gross income.

 

Indianapolis Divorce Attorney on Physical Custody, Legal Custody and Visitation

Parents who are separated from their spouse, divorced, or trying to establish paternity often worry about staying in their children’s lives.  If you are one of these parents you may be worried about how often you will see them, what impact you will play in their daily lives, or what part you will have in making major decisions.

People tend to lump all of these concerns under the umbrella term of custody.  Clients often tell me: “I want custody of the kids,” “I want a 50/50 split of custody,” or “I want sole custody of the kids.”  If you are going through a divorce or want to establish paternity of a child you need understand the difference between physical custody, legal custody, and visitation.

Physical Custody gives a parent responsibility for the physical care and supervision of the child.  Whomever is given physical custody is deemed the custodial parent.  The other parent is deemed the noncustodial parent.  By law there are certain default rights and responsibilities assigned to each parent; however, these defaults can be modified. In the end, custodial parents do not necessarily make all of the decisions for the child or determine how often the noncustodial parent will see the child.

Legal Custody is the right to determine the child’s upbringing including the child’s education, health care and religious training.  By default the custodian determines the child’s upbringing.  However, the court can award joint legal custody and the parents “will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.”

Courts can award joint legal custody if it is in the best interest of the child.  In deciding on joint legal custody the court will look primarily at whether parties agree to joint legal custody and at these factors:

 

  • the fitness and suitability of each of the persons awarded joint custody;
  • whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
  • the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
  • whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
  • whether the persons awarded joint custody:
    • live in close proximity to each other; and
    • plan to continue to do so; and
  • the nature of the physical and emotional environment in the home of each of the persons awarded joint custody

 

Visitation determines how often and for how long the noncustodial parent sees the child.  Visitation can last for as little as few hours or up to weeks at a time.  The parties can agree on visitation or the court can decide.  The Indiana Parenting Time Guidelines provide specific parenting time provisions for children based on things like the child’s age and the proximity that the parents live to each other.  If the parents or the Court want to deviate from these guidelines and give less than the minimum time provided by the guidelines they have to state in writing why it is necessary or appropriate.  To review the latest version of the guidelines you can go here: http://www.in.gov/judiciary/rules/parenting/

Indianapolis Criminal Attorney On Bailing Someone Out Of Jail

When you or a loved one is arrested your first question may be: can we get him or her out jail. The answer in most cases is yes, but it may not be in your best interest to do so right away. While there will almost always be a bail amount you can post to have them released, it may be hundreds or even thousands of dollars more than you would pay if you wait until a bail hearing can be held.

Am I eligible for a bail bond?

Indiana’s Constitution gives everyone charged with a crime, except those charged with Murder, a right to bail.  However, this right to a bail bond only means an initial bond. If a person violates the terms of their bail bond or if they are arrested on a parole or probation violation they may be held in jail without a bail bond until the matter is resolved.

How much will the bond be for a misdemeanor or felony?

While the Indiana Constitution ensures the right to bail, it does not say how much that bail must be. It only says that the bail cannot be “excessive.” What amounts to an excessive bail in a particular case is largely left to the “sound discretion of the trial court.” That means that the judge you appear before will have a lot of power to determine to how much it will cost to get out of jail.
Many counties and courts use guidelines to help determine what bail should be. Courts commonly consider what level of crime a person is charged with, what kind of crime it is (nonviolent v. violent), and the person’s criminal history. For instance, a person who is arrested in Marion County for a Level 6 Felony (what use to be called a D Felony) can expect that his or her initial bond will be $2,500 surety. However, at a bond review hearing the judge can drop that amount to $0 and release the person on their own recognizance or raise it to $5,000 if there are aggravating factors.
There are some factors that all courts are required to consider when setting bail. Those are:

(1) the length and character of the defendant’s residence in the community;
(2) the defendant’s employment status and history and his ability to give bail;
(3) the defendant’s family ties and relationships;
(4) the defendant’s character, reputation, habits, and mental condition;
(5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial;
(6) the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.

Should I post bond right away or should I wait for a bond review?
Whether to post bond right away or wait for a bond review will probably be one of your first big questions when beginning the criminal process. It is not always any easy question to answer and it is probably something you would want to ask an attorney if you consult one.
Some things you should keep in mind are, your resources, the crime the person is charged with, and how much it will cost to provide quality representation for the person arrested. Many crimes have long term consequences. You may have to conserve your resources to make sure you can fight those charges. A short jail stay at the beginning of the case may prevent a long prison sentence at the end.
For a free consultation on bond issues or any other criminal matter, contact Attorney Andrew Riedle at (317)377-4435.

Criminal Defense Process

Pre-Charging: Before charges are filed, you should not make a statement to the police without an attorney present. An experienced attorney can provide the police with the information you want them to know without sacrificing your right to remain silent.

Bond: This is the amount of money you have to put in trust with the county to be free while your case is pending. This amount will initially be set by the Court when charges are filed, but it can be reduced at a bond hearing, where your attorney can present evidence and make arguments on your behalf.

Investigation: I’ll begin your defense by finding out what evidence the State has, and assessing the best way to combat it. I’ll review the ways they gathered their evidence, interview their witnesses when necessary, and look for evidence that helps your case.

Plea negotiations: Trial is not always the best option. Negotiating a plea can limit the penalties you face and may result in reduced charges. What’s important is that you understand all the different risks and outcomes between a trial and a plea before you make a decision.

Expungement: Whether you are convicted of a felony or found not guilty, the State keeps records that are accessible to employers unless you take action. Indiana now allows criminal records to be expunged from public access. It is a process that is not often lengthy and can be simple if handled correctly.

You and your family should not face this process alone. Contact me today so I can begin helping you.

Arrested for Possession of Marijuana in Indianapolis and Indiana General Penalties

Being arrested for possession of marijuana in Indianapolis or any part of Indiana can have serious consequences.  There are several levels of criminal liability for possession of marijuana with varying penalties.

If you are alleged or arrested for possession of marijuana after June 30, 2014, you could be faced with the following penalties:

Possession of Marijuana as a Class B Misdemeanor

This is the lowest level of crime that you can be charged with if you are caught with marijuana.  If you are convicted, you can be sentenced from anywhere between 0 and 180 days in jail, and may be fined up to $1,000.  However you can be placed on probation from anywhere between 0 days and 2 years, with drug treatment classes, community service and other conditions.  Depending on your other criminal history there are different types of diversion agreements that can be negotiated which may result in your case being dismissed.

Possession of Marijuana as a Class A Misdemeanor 

If a person has been convicted of an offense involving any drug in the past, the offense becomes a Class A Misdemeanor, a higher level of crime.  If you are convicted of a Class A Misdemeanor, you can be sentenced from anywhere between 0 days and 365 days in jail, and may be fined up to $5,000.

Possession of Marijuana as a Level 6 Felony

A person can be charged with possessing marijuana as a Level 6 Felony: (1) If the person is caught with over 30 grams of marijuana; and (2) If the person is has been convicted of an offense involving any drug in the past.  If you are convicted of a Level 6 Felony you can be sentenced to anywhere between 6 months and 2.5 years and may be fined up to $10,000.

What happens do my driver’s license if I am caught with marijuana in my car?

One of the biggest concerns in these case is retaining your driver’s license.  If a court finds that a motor vehicle was used in connection with possessing marijuana, your license can be suspended anywhere from 6 months to 2 years.   This is actually a harsher penalty than most first time drunk driving offenses.

 

If you were charged with possession of marijuana prior to July 1, 2014, you may have received the following penalties:

Possession of Marijuana as a Class A Misdemeanor:

This is the lowest level of crime that you could be charged with if you were caught with marijuana prior to July 1, 2014.  If you were convicted, you may have been sentenced from anywhere between 0 and 365 days in jail.

Possession of Marijuana as a Level Class D Felony

Prior to July 1, 2013, there were two ways a person could be charged with possessing marijuana as a Class D Felony: (1) If the person was caught with over 30 grams of marijuana; and (2) If the person had been convicted of an offense involving any drug in the past.  If you were convicted of a D Felony you may be sentenced from anywhere between 6 months and 3 years and may be fined up to $10,000.

Free Consultation

These are the general penalties you may face.  Your particular case will most likely be determined by the strength of the evidence against you, whether the police found the marijuana due to an illegal search, and then on your background, character, and criminal history.

If you or someone you know has been arrested for possession of marijuana and you would like a free consultation about your case, call attorney Andrew Riedle at (317)377-4435.

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