Divorce Actions and Property Division

In a divorce case, the main benefit of litigation is obtaining assistance from a judge when you are unable to resolve an issue by agreement with your spouse. Sometimes even when a party has been ordered by a court to do one thing or another, he or she is simply unwilling to cooperate. In those cases, you can ask a judge to take action to help you get the relief you need.

So many factors play into what living arrangements are appropriate for a given family. We usually look at the distance between the parents’ homes, the ages of the children, work schedules of the parents, schools the children attend, the children’s activities, what kind of schedule the children are used to, whether any of the children have special needs, and on and on. I often say there are nearly as many types of living arrangements as there are families that we work with. You really need to focus on the children, and how you can best meet their needs with the parenting schedule. That is going to vary widely with every family I meet.

When choosing a divorce lawyer, you should always consider the facts of your particular case. For example, if your case involves child-custody issues, then you should look for someone with experience advocating for children. Have they served as a guardian ad litem? Have they handled adoption cases? Have they taught seminars addressing issues related to custody and parenting time? If your case involves a particular type of asset, ask whether the lawyer has experience valuing and working with those assets. A family business or farm, for instance, requires particular skills to value and divide. Other examples of complicated assets requiring specialized knowledge and expertise include stock options and pensions; you want a lawyer who is familiar with the issues with valuing those assets, the tax consequences of dividing them, and so on. You also may want to find out whether the lawyer has any additional certifications or designations that could be useful in your case. For instance, in Indiana some family law attorneys are Certified Family Law Specialists. That certification indicates that the lawyer has passed a detailed test focusing on family law, and has certified a particular level of involvement in family law cases over a period of years. Certified Family Law Specialists are required to go through a periodic re-certification process as well. An attorney might also have received additional training as a Collaborative lawyer or a mediator, allowing them to offer you alternatives to litigation to resolve your divorce-related issues.

Most family law attorneys charge an hourly rate and bill based on the amount of time they spend working on your case. Providing your attorney with the information they request in a timely manner and in an organized fashion will allow your attorney to work more efficiently. This will result in lower costs. In addition, grouping your questions into one email or phone call as opposed to contacting your attorney multiple times during the day or week will also help minimize fees.The best way to lower your overall cost is to listen to your attorney’s advice regarding the reasonableness of a settlement offer, and to make decisions during your case that take into account what you hope to achieve, the likelihood of success, and the cost of pursuing your goal. While the total cost of a family law case cannot be controlled by one party alone, following these suggestions will significantly reduce your fees.

Each state is governed by their own set of family law rules and statutes. While there are some similarities, there are also many differences. Equitable distribution states divide property between spouses after considering a number of different factors with the goal being to divide the property fairly or equitably. Judges in equitable distribution states, such as Indiana, have a fair amount of discretion in terms of how to apply the statute and determine a fair distribution of the marital estate. In a community property state judges assume that all property is jointly owned unless proven differently and simply divide that property in half. The majority of states, including Indiana, are equitable distribution states. Choosing the right jurisdiction in which to file your case when multiple options are available, can be an important part of your strategy. Choosing a lawyer that is skilled in jurisdictional issues will likely have a big impact on the outcome of your case.

Trial courts in Indiana are tasked with dividing marital property in a “just and reasonable manner.” Marital property refers to property acquired during the marriage, while separate property refers to property that you brought into the marriage or acquired during the marriage via inheritance or gift to you. Even so, Indiana law tells us that all property is considered part of the marital estate and the party seeking to exclude property from the marital estate has to show why it is not part of the martial estate. Additionally, in Indiana future earnings are not considered marital property or part of the marital estate subject to property division by the Court. If you have property prior to a marriage that you may not want considered during your divorce, you should strongly consider a premarital agreement.

Indiana is described as a one-pot theory state, meaning that all assets and debts, whether separate or marital are placed into the “marital pot.” There is then a presumption that all assets and debts will be equitably divided. While parties are able to craft their own agreements, should they not agree on what is marital property, a judge would ultimately decide by allocating assets or debts to a party for any number of reasons. For example, maybe the marriage was short in duration, or maybe one spouse’s contributions towards the acquisition of property was much greater than the other, or perhaps one party’s earning ability is much larger than the other’s. A judge could consider all of these types of reasons in deviating from the presumption in Indiana that all assets and debts are to be equitably divided.