In Indiana, we do just five main things when people decide to divorce. The courts dissolve their marriage, divide their property, establish custody over their children, provide for support for those children until they are emancipated, make provision for them to share time with both their parents, and in appropriate but unusual cases, grant spousal maintenance for folks who cannot care for themselves after the marriage is dissolved. The marriage gets dissolved simply by the decree of the court declaring that the marriage is ended. But from there on, the rules are more complex, so we will address them in order.
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Division of Property.
We view Indiana marriages as producing a “common pot” of marital assets, which include, presumptively, everything they possess on the date they first separate from each other. The statute establishes a presumption that the parties will evenly divide their assets, after taking into account any liabilities (debts) that exist at the time of division. In the vast majority of cases, this will mean just what it says—each side will get about half the property of the marriage, after allowance for debt accumulated during the time the parties were married and living together. There are a large number of exceptions and other wrinkles in this body of law, but what we provide here are the general rules under the statute and case law that govern the area. Having established this presumption of equal division of property, the statute then sets out a number of criteria that are to be applied by the courts in deciding whether or not to deviate from this presumption. They are as follows:
Contribution by each spouse, regardless of whether the contribution was “income-producing;”
The extent to which property was acquired by either spouse before the marriage or by inheritance or gift;
The economic circumstance of either spouse at the time of division, including in that determination the needs of a spouse with custody of minor children to have possession of the marital residence;
The ways in which either party has disposed of or dissipated marital assets during the marriage;
Earnings and earning abilities of each party.
As you can see, this list of factors can cut both ways—often at the same time. And it is this list of exceptions to the presumption of equal division that typically keeps the courts resting in the safe harbor of that presumption. The Court of Appeals doesn’t like much deviation, unless the evidence is strong in support of it, so expect the courts to carve things down the middle most of the time. The issues that can be most significant to the court in deviating from an even split typically include big differences in the income potential of the parties and evidence of marital misconduct that has cost the estate significantly.
We represented a wife whose husband had had a long-term girlfriend on whom he had expended thousands of marital dollars without his wife’s knowledge or consent. Thew guy even admitted to the judge that he had done so, and the court was quick to exact a price for that misconduct. Basically, the court simply called what he had wasted on his true love part of his portion of the estate, and our client got the rest. Anyone who has done this can expect to suffer the court’s wrath when it comes time to make a division. To the contrary, however, in cases where the marriage has been short, the contributions much greater by one side than the other, expect the bigger contributor to be recognized as such. Note that there is built into this whole statutory scheme a method of recognizing the contributions of those who manage and keep a home and raise kids. In long marriages, with kids born and raised and wealth accumulated, expect that mom’s worst day in court is the old 50/50 presumption. My old friend Jim Buck, the guy who pretty much broke me into this business in the first place and a superb advocate in this difficult area, once told me that, the bigger the estate, the less the likely the court will be to deviate very much from the presumed even division. The lawyer will have to examine all these factors to give you good advice here. See our discussion below on choosing a divorce attorney.
Spousal Maintenance.
This area is sticky, and the courts dislike it with just cause. The idea of keeping people financially connected to each other beyond child support is inconsistent with the whole concept of divorce, and the courts require serious proof of a real and provably disabling condition before saddling one of the parties with financial responsibility for the other after the marriage is dissolved. Maintenance for a spouse after the divorce has been concluded can be awarded by the court where that spouse has demonstrated a real inability to provide for his or her own care in the future. Those maintenance payments are deductible to the payer and taxable to the recipient, and they do not constitute a part of the division of the property of the marriage. They are in addition to it. Cases where a spouse actually gets this kind of award are uncommon; I’ve been at this business for 28 years, and I’ve only been involved in a small handful of cases where the issue was serious enough to take up the court’s time. Moreover, if the parties have significant assets, judges are unlikely to want to hit one side with additional responsibilities where the party seeking maintenance will recover a sizable estate upon division of property anyway. One rule of thumb here might be that the bigger the net estate share going to the disabled party, the less likely the court will be to consider maintenance very seriously. Suffice it to say that the party seeking such assistance needs to have a strong case for it, complete with medical support that is specific and compelling and a lawyer who is competent to make the case well in court.
Child Custody.
What a mess. In 28 years I have been involved in hundreds of cases where arguments over who would get the kids have been a part of the fabric of the proceeding. Of those, we have actually tried fewer than 50 as actual contested cases where custody was actually litigated. The ones where one parent was a drunk, an addict, and a crook or just plain no good have been easy, and trying them was seldom necessary. In the rest of the cases, the real problem has seldom been what the statute declares as the main idea, that of the “best interests of the children.” More often the parties make hockey pucks out of the kids because of their own issues, their own confusion at such difficult times, and often just their own bitter animus toward their estranged spouse.
Let me digress here for just a moment and tell those reading these pages that they need to be aware of the process into which they have been dropped. What began in passion and romance has turned sour and hateful, and the profound sense of failure that accompanies the whole thing is most debilitating. Whether or not admitted or even consciously recognized at the time an action for divorce is commenced, everyone lives with a keen and painful sense of that failure. Because of this, plus all the sadness, anger and grief attendant to the events, there is a certain rhythm or cadence that will appear almost invariably. Even in the most clear-cut cases, people get silly and avoid obvious and rational solutions to their problems. When no one really doubts where the kids should be, they’ll fight over it for a while anyway, avoiding the obvious right answer, sometimes for many months, before finally finishing things appropriately. Call it some kind of emotional or psychological convalescence or just a well-deserved but attenuated tantrum, but it has to pass, no matter how it is labeled. But be clear on this: the sooner the parties can put the past into perspective and set aside their venom toward each other, the sooner the case will end and life can begin anew. AND THE KIDS WILL IN NO EVENT BEGIN TO HEAL FROM THE WOUNDS THEY HAVE SUFFERED UNTIL THAT MARITAL WARFARE IS FINISHED. One of the best Indiana practitioners in this area, Bruce Pennamped, has often asked clients in the throes of this mess whether or not they wanted to decide what would happen to their kids and property or if they would prefer to have some stranger do it for them. Good question, Bruce, for that is what happens with those who refuse to deal with their own divorce issues. Growing up is hard to do, but the adults are ones who must lead the way.
As we will also see in the area of computation of child support, custody/visitation issues are becoming more and more the subject of guidelines promulgated by the Indiana Supreme Court. For many years each county has had a set of guidelines addressing issues of parental visitation with minor children, and although there were variations between counties, most of their provisions were similar. Recently, the courts have adopted a statewide set of “Parenting Time Guidelines,” a framework in which to provide some consistency throughout the state. And although these guidelines do not specifically deal with custody, they are liberal and broad enough that, once the bench and bar get accustomed to the new vocabulary, I think those new things will promote earlier and fairer resolution in many cases. When the old “who gets the kids” bright line gets more blurred, so that neither side is typically faced with “giving up the kids” to the other, egos and emotions will play a lesser role in the whole thing. However, there are a few truisms about this messy area that might be of use here:
Moms still get primary physical custody of kids more often than not; especially where they are small and the mom has been the primary caregiver before the divorce was filed. My own lawyer, Doug Church, calls this the “biological imperative,” and that’s pretty close. Dads who want to challenge that one need to have a strong case for rebutting the traditional view.
Dads who have not been involved seriously in their kids’ lives before the divorce is filed cannot expect to get custody awards. Disneyland dads don’t impress judges.
Anyone who has demonstrated emotional or psychological traits that might be dangerous or undesirable for the kids to deal with can expect to lose the custody battle. This goes for moms as well as dads, and just like in kindergarten it’s still best to keep you hands—and your big mouth—to yourself.
Kids typically go with the house. This is not hard and fast, and there are frequent exceptions to it, but there is something attractive about minimizing the disruption of the kids’ lives by the family breakup. Of course, where the house is too much for either spouse to maintain and pay for after the divorce is final, this does not apply, but expect the court to do what it can to keep these disruptions to a reasonable minimum.
Exposing children, during the time the case is pending, to new romantic interests, is bad policy. Period. Not only is it confusing and disheartening to them, judges don’t like it. Moreover, case law in Indiana tells us that “cohabitation” with a romantic interest outside of marriage (we used to call that shacking up) may be cause for limiting visitation or even changing custody. Sounds old fashioned, but the courts still frown on exposing the kids to that kind of conduct. This is not to say a court will so rule, but the case law tells us that a court that makes a determination that exposure to cohabitation is not in the kids’ best interest will not be likely to get reversed on appeal.
Unless one of the parties is really bad news where the kids are concerned, it’s stupid to fight over custody. The law requires that the “non-primary” custodian of the children must be the first-choice sitter, that they get half the summer and every other holiday, in addition to regular weeknight and weekend time. With that kind of presumed result after most fights, the idea of spending thousands of dollars on lawyers and so-called custody experts is truly a fool’s errand. For example, where the “non-primary custodian” has every other weekend from Friday evening through Sunday evening, dinner one night a week, and half the summer, that parent will see the children about 130 to 140 days a year, or just under half the days. Add to that spring break, fall break, Christmas/New Years break, alternating holidays and birthdays, and the number of days becomes very equal, even though not all those days include overnight stays. Work it out yourself. Recently the estranged husband of one of my clients became fixated on “having equal time” with the kids. His guilt over his extra-marital escapades, in my view, was the primary motivation for all this newfound passion, but he was stuck on it. Even the math I mentioned above was unable to convince him, and his children suffered terribly while he continued to make the world, his wife, and even me, the enemy, before finally discovering that he needed to think of the kids first.
Most psychologists who do evaluation work for the courts are no better at figuring out the answers than a judge would be without their input. With a few notable exceptions, these people end up dividing the baby, hedging their bets in favor of the middle of the road, and leaving the parties no closer to a conclusion than they were before the process began. This kind of report can cost as much as five to six thousand dollars—money the parties have to pay out of the marital pot. Recently my experience has been that the evaluator appeared to agree with everyone, failing to separate the rat droppings from the black pepper, and the report was a pure study in tepidness. So just remember, it’s expensive, time-consuming, frustrating, and often productive of no more insight than you should have brought to the table yourself.
“Getting even,” or other such juvenile attitudes, is best left in junior high. It’s not moral, it’s not honest, and it doesn’t work. My associate attempted to get a case mediated recently, and opposing client was so full of vengeance and rage, so consumed with self and hatred for the other side, that the whole thing was an exercise in futility. It cost them over a thousand dollars in fees and mediation costs, and the mediator finally threw in the towel after declaring that angry party impossible to reason with. And where that behavior is centered on custody/visitation issues, you can make book that that same poison pervades the household and batters the children constantly.
Remember the kids, because they pay most of the bills. You may write checks, give up property, even agree to pick up contested debt, but they pay the real currency in human terms. So recognize that fact quickly and come to a conclusion that takes them out of the arena. Besides, whatever you finally agree on, it will change over time. They grow up, get drivers’ licenses, and eventually go off to school, so nothing is forever anyway.
One last thing on custody. Under Indiana law, after the age of 14 the desires of the child become very important. The statute lists a number of points that will be relevant, and that includes “the wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years of age.” This leads us back to the common sense conclusion. With older kids and two reasonably good parents, there is no reason to battle over the fine print on a custody/parenting time deal. The sooner we grow up and come to an ordered conclusion the sooner we stop spending money and punishing the kids for our failures. Think about it.
Child Support.
This is, with few exceptions, now an arithmetic exercise in Indiana. A state guideline determines the amount to be paid, takes into account shared custody arrangements, split custody, college, and special needs. The guidelines determine, based upon pretty extensive research, a figure that should be appropriate for the given number of kids, at every income level from poverty to great wealth. The incomes of both sides are added together, then that number is used to find a gross support figure on the chart. If that number is $100, then the worksheet applies the percentage of income contributed by each side to that figure, and the result is support to be paid by that parent who is “non-primary” under the custody arrangement. Where parenting time is pretty even, the court will include that in this calculation. There are provisions for taking into account who provides medical coverage, how the parties are to divide uninsured expenses, what to do during the summer and at other times when the kids are with that parent for extended periods, and how to handle college. Again, I am continually amazed at parents, particularly fathers who can afford to do it, that there is so much argument over caring for one’s own children. Moms must expect, if they are working at all, to contribute to college on the same ratio of payment as is used to calculate support, and dads have to expect to pay a portion of uninsured medical expenses whether or not they provide insurance. More detail here will just confuse things, but expect to pay your proportionate share of the costs of raising and educating your children, and expect the calculation of those contributions to be pretty cut and dried.
Modification.
The whole idea of getting divorced is to have things finished, and the decree that a court enters at the end of the proceeding is intended in large measure to do just that. The marriage is dissolved, the property divided, former names restored if requested, and fees ordered paid. Those features of the decree are essentially set in stone, not to be revisited except in rare circumstances. But child custody, support, and post-decree spousal maintenance are specifically exempt from that list, as the court retains what is called “continuing jurisdiction” over the parties for those purposes. So when mom claims that the support has become insufficient in light of increased expenses and increases in dad’s income, she can “go back to court” to seek an increase. Likewise, where one side believes that the existing custody arrangement has ceased to be in the children’s best interests, the court will hear evidence and make a determination about requests for a change there, too. The same holds true where spousal maintenance has been ordered; the court addresses both the amount and the actual continuation of payments. In all cases where either side thinks changes should be made, the courts can be expected to rely on experts very heavily, particularly in matters dealing with custody. It is a heavy burden to bear getting a court to change a status quo, so having strong evidence and competent counsel experienced in such matters is crucial. The best thing to do here is to work very hard at resolving the matter without going back at all. Custody changes are more often than not related more to the changes in the kids as they grow up, and again, the older the kids get the more their wishes weigh in the decision. Before I swore off ever doing another one, I tried custody cases over everything from parental drug abuse to abandonment to parents who decided to move their true love in with the kids—but without benefit of a marriage license. The court had no trouble granting Dad custody in the case where he kept finding the kids on the street corner after Mom had gone off to score some heroine. There was no trouble getting another father custody when Mom moved the fourth boyfriend in six months into the apartment with their eleven year old daughter, and things were pretty easy as well when another mom simply took off for sunny California to reunite with her high school flame. However, scores of other cases were less clear, and the expense and misery factors were huge every time.
