The Divorce Act and cases that control Indiana divorce law are driven by policies that favor the parties reaching agreements. Particularly where children are involved, agreements avoid the “warfare” that sometimes ensues with contested custody cases. However, all such agreements must be in the children’s best interests. Ultimately, Indiana’s trial court judges stand in loco parentis (act as a parental figure) and review agreements to ensure all such agreements between the parties over their children are, in fact, in their best interests. In most cases, this is the case. Recent Indiana decisions have re-confirmed there are two matters parents cannot agree to. ...
March 22, 2016Adam Hayes
In Indiana, there is a 60 day cooling off period for divorce. This sometimes creates the assumption of litigants who want a divorce that it will be completed in that time frame. In almost all cases, that will not occur. This blog explores the four major components that have to occur before obtaining a divorce so you better understand the process. Many times, the parties think about a divorce but do not file or reconcile or go into counseling after filing a divorce. This is the first component--one party being firmly vested in obtaining a divorce. Filing does start the time ...
March 9, 2016Adam Hayes
The mediation process is confidential, and a mediator can only report to the court whether the parties settle, providing the agreement or did not settle. The parties and litigants also cannot relay anything they learn in mediation during the litigation process. However, even with these limitations, a failed mediation is usually very helpful to the parties in moving forward in four ways. First, a party learns about the case and how it is viewed by the other side in weaknesses (and inferentially in strengths) through the process. This may provide insights to later settle or resolve some issues before court. Second, where ...
February 23, 2016Adam Hayes
Just a few short years ago, civil litigants had two basic choices to resolve their disputes. The first was to find a way to settle the matter between counsels and themselves or go to trial. Then mediation started to “catch on.” This is where a neutral party but not a judge, who is usually experienced in the issue at hand, tries at the direction of the court to help the parties reach an agreement themselves with their counsels’ assistance. Later, the Indiana Supreme Court approved mandatory mediation before trial and found it was with a trial court’s authority to so order ...
February 17, 2016Adam Hayes
Daily news stories and life experiences demonstrate to us all that third parties, such as neighbors, friends, and grandparents are helping more and more to raise children. Sometimes disputes like divorce causes such third parties to be removed from a care-giving role that they want to continue and perhaps the children need for security and stability. This blog post explores this topic. Third parties always have one big legal hurdle to overcome, although many have done so in Indiana and other states. This is a parent’s fundamental right to raise his or her children with a minimal of state interference. The ...
October 15, 2015Adam Hayes
It may seem strange, but settling divorce outside of court, is really done by contract. This blog post covers this topic because with the freedom to contract guaranteed by the Indiana and United States Constitutions. The way this typically occurs is the attorneys send agreements the parties have reached to be signed and forwarded to the court, have a settlement meeting or attend the mediation. The document that reflects a total agreement or partial agreement is a binding contract. What is so unique about resolving a case by agreement (i.e., contract) is the parties may agree to terms that a trial ...
October 14, 2015Adam Hayes
Marriages, particularly those of a long duration, usually intermix marital property of all kinds in organic ways that can be hard for the divorce court to untangle in dividing the marital estate in a just and reasonable manner. There are many aspect of the evidence the trial court must consider. In this blog, we cover five key things that apply in most divorce cases. The first is Indiana follows a one-pot theory, whereby property owned by the parties coming into the marriage, acquired during the marriage up to the point a divorce is filed is marital property.1 Second, the net marital “property” ...
September 24, 2015Adam Hayes
In a divorce, an attorney by his or her client is supposed to present the value of all household items and other personal property items for the court to divide. The practical question this raises for the parties is how to do this. This blog provides three practice ways to value and put evidence on about the value of such items so the court has a view of the total marital estate. Big assets (homes, retirement accounts, et cetera) are easy to identify and value. Sometimes small things are not, although no party wants to re-purchase all items, like clothing, pots ...
September 22, 2015Adam Hayes
Trials are dynamic events and no two are the same, even on the same or similar issues between the same parties. To have a fair and accurate trial free of most types of evidence that can misdirect a court, there are four key rules of evidence parties and witnesses struggle to follow as sometimes they seem counter-intuitive. These are addressed in this blog post to help you put your best foot forward at trial. The first is hearsay. Unless the matter is what one “party” (not other witness) has said to the other, statements or testimony about what someone else said ...
September 9, 2015Adam Hayes
In Indiana the marital estate encompasses all assets and debts of the parties. Some states, including Indiana, refer to this as the “one pot theory.” The objective in a dissolution is to divide the parties assets and liabilities in a just and reasonable manner and return them to the status of unmarried adults. If the parties are unable to agree upon the division of assets and debts, then the trial court will make the final decision as to the division and ultimately the percentage of the division. The presumption is to divide the assets and debts equally or 50/50 between the ...
September 1, 2015Adam Hayes