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FamilyAnswer, Lawyer
Category: Family Law
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Experience:  7 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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My wife and I are going thru a divorce and the hearing has

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My wife and I are going thru a divorce and the hearing has been set middle August. We both have lawyers and are not able to come to an agreement on anything. My question is while we are waiting for this hearing can she go out and buy a home and have it be in another county, which is what she did. Are we not bound to freeze all assets until the judge has made a ruling?
Submitted: 1 year ago.
Category: Family Law
Expert:  FamilyAnswer replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good afternoon. I certainly understand the situation and your concern. Where is she going to obtain the money for the down payment and do you think she can qualify for the loan on her own? In addition, does she realize that the lender is going to ask and require that she disclose she is married and likely may not be able to place it solely in her name?
Customer: replied 1 year ago.


She paid cash out of her ira.

Expert:  FamilyAnswer replied 1 year ago.
Charlie, thank you for the additional information. Under Indiana law, marital property includes all property interests owned by either party on the date the petition for dissolution was filed (often referred
to as “the date of filing”). There are no exceptions. Therefore, marital property includes property that a party owned on the date of filing, even if the property was owned by that party before marriage. Marital property also includes property owned by a party on the date of filing, even if it was inherited by or gifted to the party. For
purposes of whether an item of property is marital property, it does not matter in which party’s name the property is titled property. If it was owned by either party (or both parties) on the date of filing, it is marital property. It may be helpful to know that most post-filing income (that is, income earned by either party after the date the petition for dissolution was filed) is not marital property. The reason I brought these things up is because she would have a right to the home, if she purchased it after. HOWEVER, you stated above that she paid cash out of her IRA and that existed and was present during the marriage. With that being said, it may be considered a marital asset and while you may not have a claim on the home she bought, you could have a claim for a portion of the IRA, which she may have to pay you. With that being said, your attorney should have an idea of what was in the IRA, since it should have been disclose and what your share, if any, would have been. Like I said above, she may have to pay you what you are entitled to from another account or receive less once the martial assets are divided by the court. Since she is represented by counsel, I'm inclined to believe that she spoke with him/her prior to do this, since it may have an effect on the marital assets.

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Expert:  FamilyAnswer replied 1 year ago.
Hi Charlie. I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!
Customer: replied 1 year ago.


Good morning,

I sent you another question yesterday and when I hit submit I looked up and saw you were offline. So I will try and remember my question.

I purchased the home we live in now when I was single, 4/20/2010 w/ VA loan. House was appraised at $90,000. We had no plans to marry but we then 7/6/2010 and at the time my wife was working full time at a savings bank making approx. $40,000. We set up a plan of her coming down to part time and then retired 9/1/2010. Everything worked like clockwork. The main benefit of her taking full retirement 9/1/2010 would be 12 months after that date she would receive IRA worth $125,000. 12 months later she did receive this IRA and added her two sons and myself to this IRA in case anything might happen to her. Several months ago when we were having some problems she took my name off this IRA. I know you think I am after her money. The answer is no, but after my concern about buying this home I am concern about the ball field being fair. Last question, I have been on full disability since June 1, 1993, the same date I took early retirement from my job after 32 yrs. and 26yrs. in the Indiana National Guard. When it comes to the part of either of us going out and financially helping ourselves after divorce I can tell you their is no way unless it is under my terms:work when I feel like it.

Thank you very much.

XXX XXX

 

p.s. I have to sign off as I have a dr's appt..

I will check my e-mails when I get back.

Expert:  FamilyAnswer replied 1 year ago.
Charlie, I am still unsure about what you are asking. I understand the facts but need you to clarify your question. I will be online all day and happy to respond.
Customer: replied 1 year ago.


Good afternoon,


First I would like to thank you very much w/your information. This has been very hard on me. Also going on seventy four and it came down to choosing my family of fifty yrs. or my wife of almost three yrs.


Following are my last questions, I hope.


1.I receive three pensions, military, Principal, and Met-life. Her atty. is going after my pensions. I bring in approx. $2900 ea month and my wife brings in $1100. Her atty. said the gap is to wide between ea of our monthly income. Can she do this?


2.Both names on mortgage and the new leased CR-V Honda 2013. The mortgage balance is $64,000 and I have thirty payments left of $296 ea month for the Honda. On contract for Honda they show after 36 payments I will have paid $15,392. On latest statement they show a payoff of $25,160 after the May payment. Divorce was filed May 7 this yr. Knowing mortgage debt by both is $64,000 what would our debt be for the Honda per In. law. Then would not the combination of the two debts be divided by two to show each one responsibility? By the way I have always made both payment. Latest appraisal (May) on home is $77,000, was $90,000 when I purchased April 2010


3. Court statement of the ability of either one going back to work to make up whatever the court orders additional income to the other.


4.Is her IRA $125,000 consider part of assets?


Thank you and good night(just kidding)


 


 

Expert:  FamilyAnswer replied 1 year ago.
Charlie, I would be happy to respond and certainly understand. When dividing the martial assets, the Judge will refer to and use the following Indiana codes, which I have listed below. One of the more interesting things and an argument to present is the fact that you were only married three years, so the amount which she may be able to obtain in regard to the pension may not be as much. As far as the home and the Honda CRV, both would be considered marital assets if obtained during the court of the marriage. As such, you both would have an equal right to them and it would need to be decided with the home if it will be awarded to one party or sold, with the profits shared equally, or if one party will be able to live there and need to pay the mortgage on their own. In an ideal situation, you and her would be able to decide that issue, along with who gets the Honda and assumes the payments. Both debts either need to be shared or assumed by one party or action needs to be taken to sell one or both and take any profits or share any loses, in the event of the car being sold, unless there is equity in it.

IC 31-15-7-4
Division of property

Sec. 4. (a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
(b) The court shall divide the property in a just and reasonable manner by:
(1) division of the property in kind;
(2) setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;
(3) ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or
(4) ordering the distribution of benefits described in IC 31-9-2-98(b)(2) or IC 31-9-2-98(b)(3) that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.
As added by P.L.1-1997, SEC.7.
IC 31-15-7-5
Presumption for equal division of marital property; rebuttal
Sec. 5. The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.

In regard to the award of maintenance, here is what the Judge will look at as well.

IC 31-15-7-2
Findings concerning maintenance
Sec. 2. A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.

(2) If the court finds that:
(A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse's needs; and
(B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment;
the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.
(3) After considering:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
a court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree.

Her IRA has the same effect as the pensions that she is going after since it all was not acquired during the course of the 3 year marriage. These are issues in which a claim could be made for a portion thereof and something which you can use to your advantage to make a claim against her IRA like she is doing with you.
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Category: Family Law
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Experience: 7 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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