Often, parties engaging in litigation have spent countless hours and invested huge portions of their lives into their case. And, there is often a great expense to litigating, in both preparation, job impact (taking time off for Court and to prepare for your case), and attorney fees. So, can some of that money spent be recouped? In Indiana, the American Rule as relating to attorney fees is generally followed. That is, that each party pays his/her own attorney fees. However, there are exceptions to the American Rule. This blog will explore some general exceptions in family law that may allow a ...
September 23, 2014CD
In litigation without a jury, and domestic law specifically, trials can go on for hours, even days. Sometimes, several days of hearings are heard over the course of multiple weeks. In some cases, several days of hearings can be set over the course of several weeks or even months. Even if a trial is only one day or for an hour or two, a party can request special findings in the matter. Special Findings of Fact, Conclusions of Law, and Judgment and are governed by Trial Rule 52 in Indiana1. Special Findings essentially summarize the case, laying the background of the ...
September 11, 2014CD
Once an initial custody determination is made and parenting time is determined, it is not etched in stone. However, a modification of custody requires more than simply stating “this is not working out”. The party seeking to modify child custody must show that there has been a substantial change in the factors for determining custody, and a modification is in the best interests of the child1. Some major events can give rise to a petition to modify custody due to the serious nature of the event. For example, if the custodial parent seeks to move 20 hours away, this may be ...
September 2, 2014CD
Indiana follows the “marital pot” theory, which means that all assets and debts, owned by either Husband or Wife before and during the marriage, no matter how the property is titled, is jointly owned by the husband and wife equally and collectively. The statutory presumption is that property will be divided equally (50/50) upon divorce.1 In some circumstances, there may be a reason to deviate from this presumed 50/50 division, and award a larger share to one or the other spouse. The court may consider the following factors as a basis to deviate from the presumed 50/50 division: The contributions of each ...
August 28, 2014CD
In Indiana, there is no statute or provision for “alimony”. Whereas in other states, a spouse may receive alimony payments after a divorce or legal separation as a type of allowance for support or to maintain a lifestyle, Indiana does not recognize this. However, there are some limited circumstances where a former spouse may be awarded money due to certain conditions/circumstances. In Indiana, this is called spousal maintenance1. Spousal maintenance can be awarded as a preliminary matter, while the divorce is pending. This often occurs when one party is not working, or is living in the marital residence with all of ...
May 15, 2014CD
Getting divorced can be a long and arduous process for both parties. The decree of dissolution divorces the parties, but still leaves many things left to do. The dissolution is a shift in the relationship between the parties, but not the end of the relationship all together. There is still communication that needs to happen. Sometimes important matters are forgotten or postponed, causing small to major problems in the future. Here are some common examples: QDRO In dividing marital property, the retirement accounts of one or both parties may have been divided by agreement or the Court. To achieve this division, a ...
May 13, 2014CD
In litigation, one of the most important means of obtaining information from opposing parties and even third parties is called discovery. Discovery can consist of many forms including written discovery, depositions, and third party discovery. Here are three key components of discovery that can help understand the process. 1) Discovery has limitations Not every piece of information is discoverable. For example, in a personal injury case, a question about why a person got divorced 10 years ago may not likely be relevant, and the other side may not likely be forced to answer. 2) The other side can object Much like in a trial setting, the ...
March 18, 2014CD
When a party determines that a marriage has been irretrievably broken, there are often several questions about how the process gets started-essentially the who, what, when, and where. These details often depend on the circumstances of the parties, but there is general information regarding filing for divorce that can help a person filing better understand the process. Who? Either party can file for divorce. Indiana is a no-fault state, so one party does not have to show the other party acted badly (ex. had an affair). The party filing must allege an irretrievable breakdown of the marriage (the most common) or ...
March 6, 2014CD
Indiana is a no-fault divorce state, which means that if either spouse wants to seek a divorce, he or she can petition the court to do so, without any requirement that the other person was at fault (i.e. adultery, etc.). This also creates the circumstance that if one spouse wants a divorce, and the other wants to salvage the relationship, a divorce will occur nonetheless. The divorce process starts when one spouse files a Petition for Dissolution of Marriage with the court. When it comes to custody and division of marital property, the statutes contemplate that both spouses are on equal ...
February 4, 2014CD
When beginning the divorce process, one of the first and most commonly asked questions is how to unwind the property and assets of the marriage and divide them between the two parties. Especially with marriages of longer duration, everything is “ours”, and years of accumulating personal property and assets can be overwhelming when determining division. Indiana state law provides that all marital property goes into one pot and the presumptive division to each party of assets and liabilities is 50%/50%1. But, how do you divide and value years worth of marital property equally? First, personal property can often be divided quicker than ...
January 21, 2014CD