Category: Divorce and Family

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/

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