Each of us knows a parent who has given up his or her career to raise their children. Most of us know an empty nest couple who were so focused on the kids, they later realized they have nothing in common when the children leave. This is when the “D” word comes up: Divorce. Additionally, most of readers know that in divorce in Indiana, the courts normally divide the marital estate 50/50. Where a parent is far advanced and in a company and earning a great living, it is difficult to imagine how an equal division is fair to the parent who has been out of the work force for a long time and is not readily employable. But what is the answer? This blog covers the four primary ways a divorce court can account for this inequity in earning power dividing the marital estate if the right evidence is presented.
First, presupposing you put on the right evidence, the trial court can deviate in favor of the parent who has raised the children in two ways as set forth in statutory code. First it can make an unequal division by considering “[t]he economic circumstances of each spouse at the time of the disposition of the property is to become effective. . . .”1 That is, if one spouse is a high-income earner and the stay-at-home is not, the court can deviate to make this fair for both parties. In addition, the trial court can award the marital home to the spouse raising the children, again if the right evidence is presented. Specifically, the trial court can consider “the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just and reasonable to the spouse having custody of any children.”2 Again, however, it takes skilled counsel to develop and present this evidence in the trial court.
Second, in the statute creating the presumption of an equal division as being just and reasonable, it allows a court to deviate by considering “[t]he earnings or earning ability of the parties related to a final division of the property and a final determination of the property rights of the parties.”3 What this means is if one spouse has significantly higher earning or earning ability than the other the spouse, the court could make an unequal division in favor of the lower-earning spouse. On the other hand, and where good lawyering comes in, if the spouse who is not on the same earning playing field because of wasted opportunities or failures to advance, this evidence may be developed and offered to support an equal division. It is all in the evidence.
Third, while Indiana does not have indefinite alimony as some states do, the court in a final hearing may order rehabilitation maintenance for up to three (3) years to allow the lower-earning spouse to attend college, a trade school, or otherwise to enhance his or her skills and ability to obtain a higher paying job.4 To prevail and obtain spousal maintenance, a spouse must present in the right evidence. The court considers the following evidence in awarding spousal maintenance:
- The educational level of each spouse at the time of marriage and at the time the action is commenced.
- 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 childcare responsibilities or both.
- The earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence or absence from the job market.
- The time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment.
Thus, in addition to or as a part of an unequal division in the stay-at-home parent’s favor, the court may award rehabilitative maintenance for educational training to increase that parent’s skills for the workplace.
Fourth, a significant part of developing the evidence the stay-at-home parent needs to present is obtaining a skilled domestic attorney. This can be a challenge to parent who is in this financially weak position. For this reason, the Divorce Act allows a divorce court to order the other side to pay some or all of party’s legal fees so they can have access to a skilled domestic advocate based in the disparity in incomes. The statutory authorization for attorney’s fees is very broad and includes costs, such as expert witnesses, and mediation fees.5
Ultimately, with skilled domestic counsel and proper development and presentation of the evidence, the stay-at-home parent may be protected on divorce to ensure both parties receive what is an equitable split of the marital pot. This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases throughout the state. This is written for general educational purposes and not specific legal advice. It is an advertisement.